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Outside the North Dakota Supreme Court chambers. John Hageman / Forum News Service

ND Supreme Court approves Buffalo hog permit

BISMARCK, N.D. — The North Dakota Supreme Court on Aug. 30 unanimously upheld a East Central District Court ruling that an environmental permit for a sow farm at Buffalo, N.D., was properly granted.

Plaintiffs in Coon v. North Dakota Department of Health argued that the permit was improper. East Central District Judge Douglas R. Herman had ruled that the Department's permit should stand.

Numerous opposing landowners from the Buffalo area had filed an appeal. They argued unsuccessfully that the health department permit should not have been granted because it failed to reopen a public comment period after Rolling Green farm had provided supplemental information for the permit.

Justice Daniel J. Crothers wrote in the decision that, under federal Clean Water Act regulations, a concentrated animal feeding operation, or CAFO, "only is required to apply for a pollutant discharge elimination system permit if the CAFO actually discharges pollutants." Crothers wrote plaintiffs failed to "establish that they will be deprived of a property interest" if the farm is established.

"We conclude the Department erred by failing to apply its administrative rules but reversing the Department's decision would be futile because Rolling Green could successfully challenge the denial," Crothers wrote.

Strong words

Derrick L. Braaten, the plaintiffs' attorney from Bismarck, called the Supreme Court decision "outrageous" and that his clients will consider asking for a rehearing or taking the issue to a federal court.

"They're saying they agree with us and decided it's not important to enforce the law in this situation," Braaten says. He believes the state health department has shirked its responsibility to create rules that may be more stringent than they currently are for large CAFOs.

"In reality, that is what should happen," he says.

Officials of Pipestone Holdings of Pipestone, Minn., the management company that will be in charge of operations for the Rolling Green project, weren't immediately available for comment.

Rolling Green filed its permit application in 2015. The farm initially planned to have 1,120 farrowing sows, 800 nursery pigs, 5,312 gestating sows and another 1,600 finish pigs — 8,832 animals in all. The original application included a range of facility plans, zoning and soil information, as well as a nutrient management plan. A revised application indicated it would have 9,056 head, raising the number of farrowing sows to 1,344, among other things.

On Dec. 8, 2015, the department issued a notice that it planned to approve the permit. The department held a public comment period and a public hearing on March 17, 2016, where more than 130 attended. The company also added more fields for applying manure nutrients, for which the plaintiffs complained about setbacks.

Setback issue

On Sept. 2, 2016, the landowners appealed the department's approval to the district court, saying the department didn't have authority to issue an animal feeding operation permit and that a pollutant discharge elimination system permit was required. They said the department failed to allow comments on the supplemental information.

The appellants claimed that Rolling Green had disclosed there would be 199,680 piglets at the facility annually, a figure that the company hasn't confirmed, and that the piglets must be counted separately from the farrowing sows to determine the "setback" distance from residences.

The department determined a one-mile setback was required, and that the facility is over a mile from the nearest residence.

The appellants said they needed a 1.5 mile setback because of the number of piglets. The court deferred to the department, which calculated 3,382.4 "animal units," a factor used across various animal species. Braaten said that calculation doesn't work for odor issues.

Some members of the plaintiff group have since attended meetings for a separate purebred sow farm being planned in the Devils Lake, N.D., area. That smaller facility would produce sows that would feed sow farms like Rolling Green, which would produce baby pigs that would go to facilities that would produce market pigs. In both cases, the Pipestone company would provide veterinary and management oversight.

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