Rosebud hog farm owner seeks standing in Supreme Court --
Scheduling Conference set for February 21 Posted by Marletta Pacheco to South Dakota Prisoner Support Group
By Hazel Bonner
WASHINGTON DC A scheduling conference is set for February 21, 2003
in the United States Supreme Court in the case of Sun Prairie v.
Neal A. McCaleb and Rosebud Sioux Tribe. Sun Prairie is operating a
hog production facility on Rosebud tribal trust land. The
corporation is appealing a decision of the Eighth Circuit Court of
appeals which dismissed its injunction and the case against the
Department of Interior and the Rosebud Sioux Tribe for canceling the
lease between the corporation and the tribe. The issue is whether
the corporation has standing to sue the federal agency and tribe for
revoking the lease.
BACKGROUND
In the spring of 1998, the Tribe and Sun Prairie negotiated a land
lease for the development of a multi-site hog production facility on
the Rosebud Reservation. The BIA office in Aberdeen arranged for the
preparation of an environmental assessment (EA) which was finalized
in August 1998. Based on the EA the BIA Superintendant issued a
Finding of No Significant Impact (FONSI) and authorized the Tribe to
sign the lease. The lease was approved by the BIA and construction
began in September.
The project was to consist of two phases. Phase I consists of three
finishing sites to be used to fatten hogs for market. Phase II
consists of five sow sites and five additional finishing sites. By
the time of the hearing on the preliminary injunction request Sun
Priairie had expended about $5 million on construction.
On November 23, 1998, Concerned Rosebud Area Citizens, South Dakota
Peace and Justice Center, Prairie Hills Audubon Society, and Humane
Farming Association, acting as intervenors, sued the federal
government in the District Court for the District of Columbia
seeking to suspend BIA's approval of the lease. On January 27,
1999, BIA Assistant Secretary Gover sent a letter to the Tribe
voiding the lease between the Tribe and Sun Prairie because the EA
did not comply with the requirements of the Environmental Policy
Act. The intervenors then agreed to dismiss the D.C. litigation.
The Rosebud Tribe and Sun Prairie filed the current lawsuit
challenging the Assistant Secretary's decision to void the lease in
United States District Court for South Dakota in Pierre. The
District Court issued a temporary restraining order (TRO) on
February 11, 1999.
The TRO was later extended and then turned into a permanent
injunction. The injunction restrained the intervenors from "taking
any actions, other than seeking relief bv appeal or other
appropriate judicial relief, which actions would have the purpose or
consequence of interfering or attempting to interfere with the
construction or operation of the project that is the subject matter
of this action." With that ruling Sun Prairie continued developing
the site.
Following the entry of the permanent injunction the Tribe held
elections and the composition of the Tribal Council changed. The new
council was opposed to the hog project and decided to uphold the
Assistant Secretary's decision to void the lease. The tribe was
given permission to be removed as a plaintiff/ appellee and to
become an appellant in appealing the permanent injunction.
SUN PRAIRIE CLAIMS
The hog farm owners claim the decision of the Assistant Secretary to
void the lease violated several statutes under Title 25 of the
United States Code involving the relationship between Indian tribes
and the federal government. Sun Prairie sued under the
Administrative Procedure Act, which provides judicial review of
federal agency actions.
Sun Prairie claims that they have standing to sue because they have
rights protected by the statutes and that they have been harmed by
the actions of the federal agency.
The BIA, the Rosebud Sioux Tribe and the intervenors say the
statutes relied on by the corporation were enacted to protect Indian
interests, and therefore give no legally enforceable rights to non-
tribal or non-governmental parties whose interests conflict with the
tribe's interest.
Sun Prairie also claims that they have a right to sue under
environmental statutes. The intervenors argue that NEPA protects the
environment and does not protect contracts involving an entity,
which may hurt the environment. They say that Sun Prairie seeks to
protect only their own economic interest, not the environment.
Sun Prairie also claims that they deserve protection under the
National Historic Preservation Act. The intervenors state that the
economic interests of Sun Priarie do not fall within the zone of
interest protected by NHPA.
Sun Prairie claims also that they were injured by the failure of the
Assistant Secretary to follow procedures in voiding the lease.
Intervenors claim that while procedures were not followed, Sun
Prairie must also show that its interests underlying the procedural
rights fall within the zone of interest of the rights the statutes
are designed to protect.
EIGHTH CIRCUIT DECISION AND APPEAL
On April 5, 2002, a three judge panel of the Eighth Circuit Court of
Appeals ordered that the permanent injunction issued by the District
Court for the District of South Dakota be vacated and that the
complaint filed by Sun Prairie be dismissed for lack of jurisdiction.
The Appeals Court said that in spite of the fact that Sun Prairie
had identified a procedural problem and definitely stood to lose
economically if their lease is not reinstated, that they did not
have standing to sue under the statutes they identified. The court
agreed with the intervenors that the interests of the federal
statutes were meant to protect Tribes and the environment.
The court held that a Non-Indian lessee of Indian tribal trust
property on which the lessee plans to construct a pork production
facility lacks standing to challenge the BIA decision voiding the
lease on the ground that a FONSI was issued in violation of NEPA.
They further stated that even though Sun Priaire has demonstrated
injury that was caused by the administrative decision that could be
redressed by a favorable court decision, its interest, being purely
economic, falls outside the zone of interests sought to be
protected by the federal statutes.
The court said that Sun Prairie did not meet its burden of proving
that their considerable economic interests were protected by the
federal statutes enacted to protect Tribal relationships with the
federal government and to protect the environment.
On November 12, 2002, Sun Prairie filed for a writ of certiorari
from the United States Supreme Court. That acts as an appeal and if
the Writ is granted and the case is heard the Court will consider
the issue.
The issue to be decided is, "Once a lease of Indian lands to a non-
Indian party has received federal approval, does that non-Indian
party have standing to challenge the federal agency's attempt to
void the lease by unilaterally withdrawing its previous approval?"
The Department of Interior, The Rosebud Sioux Tribe and Concerned
Rosebud Area Citizens and other intervenors filed briefs in
opposition to the granting of the Writ on January 15, 2003. Sun
Prairie filed a reply brief on January 28. The briefs were
distributed on January 29 in preparation for a scheduling conference
scheduled February 21, 2003.
The scheduling conference will determine deadline dates for
discovery, amendments and motions to be filed. That conference may
be followed by oral arguments by parties in the case speaking for
and against the granting of a writ of certiorari.
Watch for interviews with parties in this case in the near future.
Hazel Bonner is a freelance writer who writes from her home. She may
be reached electronically at hbonpidge1@hotmail.com; by phone at
(605) 343-4467l; or by mail at PO box 3712, Rapid City, SD 57709-
3712.
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