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http://www.rapidcityjournal.com
June 10,2003
By Steve Miller, West River Editor
RAPID CITY -- A federal judge has ruled that a lease allowing a Nebraska firm to build huge hog farms on Rosebud Sioux Tribe land is valid.
U.S. District Judge Richard Battey made the determination in rejecting most of the motions by the tribe, the federal government and private groups to dismiss a lawsuit by Sun Prairie Partnership, owner of the two huge hog farms in Mellette County. Battey's finding appears to be in line with the judgment Sun Prairie is seeking in its lawsuit.
In 1998, the Rosebud Sioux Tribal Council signed a lease with Sun Prairie to build as many as 288 large hog barns on 13 sites on tribal trust land in Mellette County. Bureau of Indian Affairs head Kevin Gover approved the lease a short time later.
But after environmental and humane-farming groups and some tribal members filed a lawsuit saying the lease was signed in error, Gover rescinded the lease in early 1999, citing the need for an environmental-impact statement.
Later that year, federal Judge Charles Kornmann of Pierre ruled that the hog farm could be built and operated. Since then, Sun Prairie has built two huge farms west of White River, each with 24 barns and capable of feeding as many as 96,000 pigs a year.
However, an election brought a new tribal president and new council members who joined efforts to close the farms.
Because the tribe switched sides in the case, a federal appeals court last year struck down Kornmann's ruling, saying Sun Prairie didn't have legal standing because it was not an Indian tribe.
In March, the tribal council voted to ask the BIA to shut down the hog farms.
Sun Prairie contends that federal agents and the tribe have unconstitutionally interfered with the hog farms. The firm seeks an injunction to halt any shutdown order issued by the BIA or interference by the tribe, as well as damages from the tribe.
Although Battey has not granted an injunction, his motions ruling says Gover's rescission of the lease violated due-process regulations. "The lease, accordingly, is valid, and its terms control the court's analysis of the pending motions to dismiss," Battey wrote.
Sun Prairie attorney Greg Fontaine said in a phone interview Monday evening that he hadn't completely reviewed the decision. However, he said: "We are pleased that Judge Battey has found that the lease is valid. We look forward to moving from here to a solution that puts the years of dispute behind us."
Both farms, which employ tribal members, are still operating, Fontaine said.
"We anticipate and hope we will have discussions with the other parties on a mutually acceptable solution under which the farms will continue to operate throughout the lease term," he said. Nearly 25 years remain on the lease, he said.
Battey's ruling "sounds a lot like a judgment, but the case is too preliminary to call it that," said Jim Dougherty, a Washington attorney representing The Humane Farming Association, Concerned Rosebud Area Citizens and others who have intervened in the case, alongside the tribe and the federal government.
Dougherty said an appeal is likely if Battey rules against the tribe, the government and the intervening groups.
"It looks like a victory for Sun Prairie, but we'll really know when someone seeks another ruling," he said.
In a motions hearing May 9, Battey focused his questions and comments on whether a contract between a private firm and an elected tribal government could be voided simply because a new tribal council was elected.
"It is important to tribes to be able to have contracts with outside contracting people to bring economic benefit to the reservations," Battey said at the hearing. "It is important for tribes' economic well-being that contracts be enforced and not subject to elections."
Also at the motions hearing, tribal attorney Terry Pechota of Rapid City argued that if the appeals court found Sun Prairie had no legal standing to sue over the lease, the firm should have no legal standing to sue the tribe now.
Peter Harriman Argus Leader
http://www.argusleader.com/news/Fridayarticle3.shtml
published: 6/6/2003
1 suit involving reservation business dismissed
The U.S. District Court for South Dakota has dismissed a lawsuit involving a commercial hog-farm operation on the Rosebud Sioux Reservation.
The ruling ended an effort by Sun Prairie to get an injunction against the tribe and other opponents of its hog farm, but lawyers for the two sides disagree about the decision's impact. And another lawsuit remains active, leaving the farm's status unresolved.
Jim Dougherty, a Washington, D.C., lawyer who represented opponents of Sun Prairie, said the decision clears the way for the Rosebud Sioux Tribe to close down the factory hog- farming operation.
"They are in no man's land," Dougherty said. "There is no order that requires them to shut down. But there is no order that protects them. Now the tribe can consider its options to shut them down."
A lawyer for Sun Prairie's parent company, Bell Farms Inc. of Wahpeton, N.D., said the ruling had been anticipated.
"There is no change in day-to-day operations as a result of the dismissal by the District Court," said Greg Fontaine, Bell Farms general counsel. "Everybody knew this dismissal would be forthcoming."
In April of this year, the Rosebud tribal council voted 15-4 to ask the federal Bureau of Indian Affairs to close Sun Prairie's two hog operations on tribal trust land. Each farm has 24 barns and can feed 96,000 pigs a year.
However, Sun Prairie's pending lawsuit continues to shield operations for now. That suit, filed against the federal government and the tribe, seeks restitution if hog farming at Rosebud is interrupted. The company has invested about $20 million in the Rosebud operations so far.
Hog-farm opponents argued for the dismissal of that suit in federal court in Rapid City about three weeks ago. No decision has been handed down.
The controversy began about five years ago, when Sun Prairie signed a lease with the tribe to build 288 barns on 18 sites near White River. The two farms, which have been operating since 1999, were the first phase of the project.
After tribal elections in 1999, the new council and president opposed the deal, fearing water and air pollution from hog waste. They also raised concern that economic impact would not meet expectations.
At approximately the same time, Concerned Rosebud Area Citizens, the Humane Farming Association, Prairie Hills Audubon Society and South Dakota Peace and Justice Center banded together and sued to stop hog- farm operations until an environmental impact study was prepared.
Sun Prairie countersued and won injunctions by District Judge Charles Kornmann that allowed farming operations to continue without pause for environmental review. Opponents appealed, and the federal 8th Circuit Court of Appeals and the U.S. Supreme Court reversed those injunctions, paving the way for the dismissal this month of Sun Prairie's countersuit.
Now the matter lies with Sun Prairie's remaining lawsuit, Fontaine said. "The litigation has no effect on day-to-day operations. We go about our business, the tribe goes about its business."
Fontaine said Bell Farms will postpone any decision to build additional hog farms until litigation is resolved.
"We don't need any more, at this time," he said.
Tribal officials could not be reached for comment Thursday.
Get the Case:
ROSEBUD SIOUX TRIBE v. MCDIVITT, No. 00-2468 (8th Cir. April 05, 2002)
http://caselaw.lp.findlaw.com/data2/circs/8th/002468p.pdf
Tribe seeks halt to hog farm suit
http://www.rapidcityjournal.com
May 10,2003
By Steve Miller, West River Editor
RAPID CITY -- A lawsuit over the huge hog farms on Rosebud Sioux Tribe trust land could have implications for future economic development on American Indian reservations, the federal judge hearing arguments in the case said Friday.
Attorneys for the Rosebud Sioux Tribe, the federal government and a humane farming group asked U.S. District Judge Richard Battey to dismiss a lawsuit by Sun Prairie Partnership, which built the two hog farms on tribal trust land in Mellette County. After listening to nearly two hours of arguments Friday, Battey said he would rule later on the motions to dismiss Sun Prairie's lawsuit.
The lawsuit is the most recent in a tangle of legal actions that began after the Rosebud Sioux Tribal Council in September 1998 signed a contract with Sun Prairie to build as many as 288 hog barns on 13 sites on tribal trust land. Bureau of Indian Affairs head Kevin Gover approved the lease a short time later.
However, after environmental and humane-farming groups and some tribal members began protesting the decision, Gover rescinded approval of the lease in early 1999, citing the need for an environmental-impact statement.
Later in 1999, U.S. District Judge Charles Kornmann ruled that the hog farm could be built and operated. Sun Prairie since has built two farms west of White River, each with 24 barns and capable of feeding as many as 96,000 pigs a year.
Meanwhile, a new tribal president and 15 new council members - many of whom opposed the hog farm project - were elected in late 1999 and joined efforts to close down the hog farms.
Because the tribe, in effect, switched sides in the case, a federal appeals court ruling last year struck down Kornmann's ruling, saying Sun Prairie had no legal standing because it was not an Indian tribe.
Tribal attorney Terry Pechota of Rapid City made the same argument in a motions hearing Friday before Judge Battey. "If they have no standing to question the government in rescinding the lease, how can they have standing to sue the tribe?" Pechota asked.
Pechota also said Sun Prairie should seek redress in tribal court before taking its case to federal court.
But Battey focused his questions and comments on whether a contract between a private firm and an elected tribal government could be voided just because a new tribal council was elected.
"It is important to tribes to be able to have contracts with outside contracting people to bring economic benefit to the reservations," Battey said. "It is important for tribes' economic well-being that contracts be enforced and not subject to elections."
In March, the tribal council voted to ask the BIA to shut down the hog farms.
Sun Prairie contends that federal agents and the tribe have unconstitutionally interfered with the hog farms and should be liable for any Sun Prairie losses if the operations are shut down. The firm seeks an injunction to halt any shutdown order issued by the BIA or interference by the tribe, as well as damages from the tribe.
"If the government is allowed to do this, if the tribe is allowed to do this, there will be no more businesses on Indian reservations," Sun Prairie attorney Skip Durocher of Minneapolis told Battey.
Durocher also said the tribe, in the 1998 lease agreement, waived its right to sovereign immunity from lawsuits.
However, Washington attorney Jim Dougherty said the tribe "didn't realize what it was getting into and realized it should have had a complete environmental impact statement." Dougherty also cited a similar case involving an Indian tribe that rescinded a contract.
Dougherty represents The Humane Farming Association, Concerned Rosebud Area Citizens, and others who have intervened in the case, alongside the tribe and the federal government.
It is a somewhat unusual alliance, because the tribe, the federal government and the other groups earlier had been at odds with each other over the hog farm issue.
Justice Department attorney Thomas Bartman told the judge that Gover, then assistant secretary of the Interior Department for the BIA, was right to rescind approval of the hog farm lease to attempt to comply with the National Environmental Policy Act.
Pechota said the federal government, not the tribe, rescinded approval of the lease. "Sun Prairie didn't want an EIS (environmental impact statement)," he said.
Sun Prairie only wants to get its day in court, Durocher said. "It's about due process and the right to be heard."
Sun Prairie seeks a court ruling that would allow it to continue operating as authorized in the lease agreement, according to Greg Fontaine, attorney for Bell Farms of Wahpeton, N.D., an affiliate of Sun Prairie. The lease authorized as many as 13 farms, if certain conditions were met.
However, Sun Prairie would be satisfied to reach an agreement with the tribe and the government allowing it to continue operating the existing two sites, Fontaine said after Friday's hearing.
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