VERMILLION, S.D. - As a three-judge panel of the 8th U.S. Circuit Court of Appeals considers whether the lease for a controversial hog farm on Rosebud Sioux Tribal land will stand, its developers prepare to break ground on another site - promising to be as large as the first - just a few miles north of Cedar Butte.
Attorneys for both sides argued their cases before Judges Kermit Bye of Fargo, N.D., David Hansen of Cedar Rapids, Iowa, and Chief Judge Roger Wollman of Sioux Falls and a crowd composed of law students, tribal members and environmentalists in a court room at the law school on the University of South Dakota Monday, Feb. 26. (See story on C1.)
The tribe entered into a lease contract in September of 1998 with Sun Prairie, a partnership primarily owned by Bell Farms of Wahpeton, N.D, which included the tribe as a partner receiving a portion of the profits. Included in the lease signed by then-Chairman Norman Wilson was a waiver of the tribe's right to sovereign immunity allowing the tribe to be sued if it didn't meet the terms of the lease contract.
The appeals court is the last step before the case reaches the U.S. Supreme Court.
Questions remain in the minds of tribal members, including a small, autonomous group called the Tribal Presidents Association Inc. Its representatives, from the communities on the reservation, recently toured the existing facility to learn more about the operation.
Edd Charging Elk, executive director, said the group's main concern is protecting the environment for the generations that follow. Charging Elk said he spent more than $7,000 of his own money in expenses following the suit through the courts, attending the hearings and traveling to get information about its impact. He said he wasn't entirely convinced the management of the waste is adequate protection.
The developers arranged the tour, saying they wanted to clear the air and bring forth correct information rather than rumors they said were circulating across the region.
Developers said while it would be fairly represented as a cutting-edge facility, it wasn't a "state of the art" facility. The neat rows of barns, filled with hogs from a few weeks old to 250-pound animals nearing shipment, were clean. They included automation for feeding, cleaning, heating and cooling along with pipelines and automated pumps to move waste into digesters.
The digesters, outdoor wastewater facilities much like those used by cities, were perhaps the source of the greatest interest among skeptical tribal members who said they feared the waste might leak into the water table.
Hog farm officials, including engineers, contend the present method of handling waste is environmentally safe. They said a recent mandate by Bell Farms owner Rich Bell to add heated digesters is merely a more costly approach to the same process.
When the waste is removed from the barns, it is pumped into lined and covered evaporator dams allowing the aerobic digester to clean it before it is pumped into another holding dam. Aerobic bacteria clean waste processed through the digester.
But officials admitted the digester wasn't working as fast as desired and that it takes more than two years for the bacteria to effectively clean the waste.
Not satisfied with the slowed efficiency, Bell, which operates farms in North Dakota, Minnesota, Iowa and Nebraska, mandated use of a heated apparatus to speed up the process at a cost of up to $500,000 for each site, officials said.
Charging Elk said the association wants an independent assessment of water samples in the area to make sure water sources are not being polluted.
Many local community representatives said they weren't necessarily opposed to the industry, but weren't satisfied with waste disposal at the present site and are looking into other methods. At least one business specializing in converting such waste into usable resources is being considered as a potential tribal enterprise.
Tribal members, upset by the contract, voted against the incumbent tribal president and most of the tribal council members who approved the original contract with Bell Farms in a 1999 election. Many of the representatives participated in a straw vote in June showing opposition to the project.
Charging Elk said that most alarming to many tribal residents was the lack of information provided to tribal members who felt the deal was sealed quickly and without their consent.
What hangs in the balance is a more than $43 million investment and a facility that employs 18 people including 15 tribal members along with $33.7 million worth of pork each year. More than $5 million is spent for feed and the facility uses more than 43,000 gallons of water per day.
The new site near Cedar Butte is just one of more than a dozen such facilities planned for the area under a long-range development plan. Each site would include 24 barns to hold 2,000 pigs and a large, outdoor waste disposal facility mirroring the first site.
Cedar Butte will receive baby pigs from a Bell farrowing site in Colorado, feed them for six months and ship them to a Hormel plant in Fremont, Neb., for slaughter. Each year it will feed nearly 100,000 pigs.