PIERRE, S.D. - A federal judge has continued an order allowing Wahpeton, N.D., developers to continue work on the second of more than a dozen sites that will place 288 hog barns on tribal lands leased from the Rosebud Sioux Tribe in south-central South Dakota.
U.S. District Judge Charles Kornmann continued his earlier order preventing the tribe of from interfering with the massive and controversial agricultural development. The judge went against the wishes of tribal members who opposed the development.
The order blocks the tribe from using its tribal court to stop construction under way on a new site on tribal land north of Cedar Butte.
Kornmann said he's convinced a majority of the people who live on the reservation "are looking for some way to get rid of the hog farm completely," but he said the tribal council agreed to a lease with Sun Prairie Partnership of Nebraska to build as many as 288 hog barns in two phases on tribal lands.
Sun Prairie, a partnership between Bell Farms of Wahpeton and the tribe, plans to invest more than $100 million in the project.
"The fact remains, the tribal office, tribal council, agreed to this deal, rightly or wrongly. We're all bound by all these things we agree to, even if hindsight tells us we shouldn't have done it," Kornmann said.
The judge extended his temporary order against the tribe for 10 days and said he'll have a written decision within a week.
The tribal council voted in late April to ask the tribal court to order developers to stop building a second site, but Kornmann's ruling overrode tribal court action.
The previous tribal council, under then-President Norman Wilson, signed a lease with Sun Prairie to build as many as 288 hog barns in two phases on tribal land.
The present council resolution attempting to halt construction through the tribal court alleged that Sun Prairie has not met terms of the lease, including getting advance approval by the tribe of plans for roads and rights of way.
Tribal President William Kindle and 15 council members were elected in late 1999 after the first facility, the Grassy Knoll hog farm, was built. Kindle was elected on a platform to rid the tribe of the hog production facility.
Nearly a year ago, the tribe held a non-binding referendum and tribal members voted by a narrow margin against leasing more land to the developers. The first farm site, built in 1999, had 18 employees, 15 of whom were tribal members as of February.
The developers have broken ground on a nearly identical site.
Kornmann ruled in February 2000 that the entire project could go forward and granted an injunction barring the BIA and opposition groups from interfering with the hog farm.
Attorneys for the tribe and groups opposing the operation held that the tribe wasn't included in the injunction because it wasn't part of the groups listed in the original ruling. However, Judge Kornmann said the ruling included any group attempting to interfere with the continuation of the project.
Oleta Menansky, co-chairwoman of Concerned Rosebud Area Citizens, said she thought the judge simply put off making a ruling hoping the Eighth Circuit Court of Appeals might rule on the validity of a the contract before Kornmann returns his decision.
Tribal members, concerned with the implications the hog farm might have on tribal cultural sites, were among tribal members who filled the room, awaiting a decision.
The second hog site is near an old trail used by several chiefs including Sitting Bull, Spotted Tail and Hump. Land in the area contains fossils and artifacts, Menansky said.
But BIA officials disputed the claims saying the trails are lore.
Some 20 protesters stood on the sidewalk in front of the Federal Building before and after the hearing, carrying an American flag and signs demanding that the hog farm be stopped.
Few were Rosebud Sioux tribal members. Carter Camp, an Oklahoma native and a member of the Ponca Tribe, stood at an intersection trying to make motorists aware of the issue. Camp was among American Indian Movement leaders during the 1973 occupation of Wounded Knee on the Pine Ridge Indian Reservation.
At the end of the hearing Camp spoke in court on behalf of Rosebud Sioux Tribal members.
"These guys have already started digging a tremendous hole. Can't you at least let them hold up on the dirt work until an agreement is signed? I'd like to see the court think about the people a little bit," Camp said.
Kornmann said the issue revolves around the fact that a contract was signed.
"I'm not going to stop Sun Prairie from proceeding under a lease which I held was valid. I believe we must be very careful around reservations, in Indian country, that we do not frighten investors. If anyone gets the idea a contract with a tribe is worth less than a contract with General Motors, that's a serious matter."
Under leadership of a new tribal chairman and council, the tribe joined other groups to appeal Kornmann's order from last year.
That case is still before the Eighth Circuit Court of Appeals. A three-judge panel that heard arguments in the case in February is expected to rule on that case in a few weeks.
Kornmann said he's never seen a case in which a party to a lease voluntarily approached a court for an injunction, then switched sides to appeal the order it obtained.
The judge recommended that the tribe and Sun Prairie find some way to mediate differences, adding that federal mediators would be available if both sides were willing to compromise.
"I don't want to be micromanaging and litigating every two-bit concern involving the lease," Kornmann said.
Gregory Fontaine, an attorney for Sun Prairie, said it has been difficult to work with the tribe. "We have tried and tried and tried to sit down and work things out."
Fontaine said the tribe failed to invite Sun Prairie or Bell Farms to meetings and purposely delayed matters allowing the developers to move forward with plans.
Members of the opposition said developers were invited to a tribal meeting last spring where tribal members discussed their feelings about the farm, but Sun Prairie and Bell Farms officials declined to attend the meeting.
Terry Pechota, an attorney for the tribe, said the issue is a contract matter and shouldn't be a federal case at all. He said the tribe discovered serious questions about the lease with Sun Prairie and wanted to halt progress until those questions were answered.
In the interim, the developers have been fighting with the tribe over providing water to the facilities and a resolution to a waste treatment issue. Bell Farms claims the tribe agreed to provide water to the facility free of charge, but Pechota disputed the claim saying nowhere in the lease contract does it say the tribe will provide free water.
"I don't understand how somebody willing to spend millions of dollars on a project is going to nickel and dime a bunch of poor people," Pechota said.
He added that the digester ponds, used to treat the waste from the barns, haven't been operating as intended.
"We did not want Bell Farms out there building this site until these issues were resolved," Pechota said.
Kornmann suggested opponents might consider going over his head to the appeals court with a legal action challenging his authority to issue that order of a year ago.
Another move to stop the Hog Farm growth will be a camp on a hill just to the west overlooking the 24 barns of the Sun Prairie operation.
Camp said the encampment will be named Camp Sovereignty and will include tribal members who are interested in maintain sovereignty and others who are interested in the environmental issues.
The camp was organized to raise awareness of the opposition to the hog farms, said Oleta Mednansky, co-chair of the Concerned Rosebud Area Citizens.