FARGO, N.D. - The lawyer for a landowner group at Buffalo, N.D., says the group will appeal a judge's decision to support the North Dakota Health Department's approval of a 9,056-head piglet farm in western Cass County.
East Central District Judge Douglas R. Herman on March 1 issued a preliminary order upholding the health department's approval of the permit for Rolling Green Family Farms to build a gestation and farrowing facility. The court issued a proposed judgment on March 6 and was likely to make it final within a day or so, says Derrick Braaten, a Bismarck, N.D., based lawyer for the Concerned Citizens of Buffalo.
Braaten says the decision was a surprise and a disappointment and that his group definitely will appeal the issue to the North Dakota Supreme Court within 60 days.
"To me, his opinion read pretty much like the health department's brief," Braaten says.
Pipestone Holdings will manage the Rolling Green farm for a dozen independent hog producer-owners who will receive the piglets. Barry R. Kerkaert, a veterinarian and vice president of Pipestone Holdings, says the owners in Iowa, Minnesota and South Dakota have not yet decided whether to go ahead with construction this spring because of the risk of an adverse North Dakota Supreme Court appeal.
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"We're really excited with the district judge's decision and appreciate the great work that the Department of Health has done," Kerkaert said.
He says frivolous lawsuits have the effect of delaying and frustrating those who would invest in the state.
"I'm disappointed in these folks' lack of confidence in their own state," Kerkaert says of the opponents. "I'm pretty passionate about how people put themselves in front of food production and somehow feel they are taking the high road. It's very selfish behavior."
The $20 million facility would involve an annual payroll of more than $1 million, Kerkaert said.
In the order, Herman said the parties submitted over 6,000 pages of transcripts and held oral arguments on Feb. 6 in Fargo. The company applied for a permit on Sept. 8, 2015 and revised it on Dec. 10, 2015. The department held a public meeting on March 17, 2016, to collect comments, and Rolling Green finalized its application on June 20, 2016.
The department issued its conclusions on Aug. 4, 2016, supporting the permit with three modifications: to require injecting or incorporation of manure within eight hours of land application; to require weekly inspections of the drain tile sump; and to conduct groundwater monitoring of the drain tile sump, taking corrective action if needed. The final permit was issued Aug. 23, 2016, and Braaten's clients filed their appeal to Cass County on Sept. 2, 2016.
Their voice Herman disagreed with the department that Braaten's clients lacked standing to pursue the appeal. He said they had participated in the process and their "continued use and enjoyment of their property could be affected." He said that if a more "full-blown" permit is required, the setbacks jump to 1.5 miles and specifically includes some of the appellants.
On the other hand, the judge found that the health department "followed the law regardless of standard of review to be applied." He said the state permit appeal isn't the proper way to compel Rolling Green to obtain a more stringent federal North Dakota Pollutant Discharge Elimination System permit, which comes from the federal Clean Water Act.
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He said the Environmental Protection Agency rules require concentrated animal feeding operations to apply for a more stringent permit only if they "discharge pollutants into surface waters," which the permit doesn't allow.
Braaten had argued the agency should have been allowed more comment because Rolling Green made changes to the permit after the March 17, 2016, meeting, and a comment period extension to March 19, 2016. All updates were final on June 20, 2016. Herman said any changes "provided additional support for and improved the existing designs." He said the agency was not obliged to reopen comment periods for favorable design changes or additional land application areas because they are "not pivotal."
One direction Further, Herman said it is an "inescapable fact that all material changes required by NDDH flow in one direction only: requiring more and more of Rolling Green so as to provide more safety and security to the public, specifically including local residences" including the appellants.
The judge didn't disagree with the agency when it accepted Rolling Green's calculations the 200,000 unweaned piglets born each year would not be counted under formulas that indicate they are small enough and with the sow so don't carry a formula number. The appellants said should be counted as .1 animal unit and that it would add enough to numbers to increase setback distances to 1.5 miles, instead of 1.0 miles.
"To be perfectly candid, it is difficult for a judge chambered in Fargo to tell the state agency how it should count pigs," Herman said, in the order. "This is where a reviewing court would give deference to the administrative agency's reasonable interpretations of its own regulations."
