​Concerned Citizens of Buffalo file appeal to block hog farm

By Matthew Musacchia

On September 1st, the Concerned Citizens of Buffalo, a group opposed to the proposed hog farm near Buffalo, North Dakota, announced from the front of the Cass County Courthouse that they plan to file an appeal against the North Dakota Department of Health. The appeal seeks to challenge the permit recently granted early last August for the hog farm’s construction.

Liane Stout was one of the residents speaking on behalf of the group.

“When the North Dakota Department of Health issued a permit to an out-of-state corporation to construct a 9,000 hog industrial facility just a few miles south of Buffalo,” she said, “I immediately felt our community voices were not heard. I felt betrayed by the very people who were supposed to protect us.”

As previously reported, the Concerned Citizens of Buffalo have long been opposed to the proposed industrial hog farm, or CAFO (Concentrated Animal Feeding Operation) after their mayor, Antoinette Babcock, found out about it by chance last December. The residents then submitted over 1,900 pages of evidence and concerns by the open comment period on March 17. Stout said that while the North Dakota Department of Health’s mission statement is to “‘protect and enhance the health and safety of all North Dakotans and the environment in which we live,’” she did not feel they were living up to their goals.

“How are we being protected if they allow only a one-mile setback from these 9000 pigs to a school, to a church, to a business, to a public building, park, campground, or my neighbor’s house?” she asked. “But a three to five mile is a setback that’s usually the distance between hog operations in order to control disease?”

Stout went on to cite her concerns of how water, air, and soil were being protected from liquid manure generated by hogs and the “negative effects” of 643 pounds of dead pigs, the estimate she said was produced by Rolling Green Family Farms, the company building the hog farm. Stout said they will be added to a compost every day, on a facility with one side open to elements. In her announcement, Stout also cited the burden of related costs in terms of road use, and what she said would be the negative effects of health, environment, economy, and property.

“How did profits, productivity, and pigs become more important than the people?” she asked.

Attorney Derrick Braaten, of Baumstark Braaten Law Partners in Bismarck, represents the residents. He said the appeal of the decision is against the Department of Health and the applicant, Rolling Green Family Farms. Braaten said he is filing a notice of appeal and specifications of error, and ultimately hopes to overturn the permit.

In a copy of the document obtained by the High Plains Reader, there are thirteen accusations listed, charging that the permit was not completed in accordance with state law. These charges range from perceived problems with issuing the permit itself to environmental consequences and flaws in the proposed structural design of the facility. In addition, two claims were made in regards to the constitutional rights of the applicants, and another claim was put forth that the North Dakota Department of Health did not “sufficiently address the evidence presented to the agency by the Appellants” in terms of “preponderance of evidence.”

Besides charges against structural, environmental, and health concerns, Braaten used an example of what he felt was the “most egregious” in the permit, saying that the Health Department was not open with them about communications between their office and the company.

“The applicant, according to the department’s regulations, is given twenty days to respond to comments,” he said, referring to the time after the March 17th comment period. “And the comments submitted by the concerned citizens of Buffalo were voluminous, thousands of pages… Our law firm submitted an open records request under the open records laws of North Dakota. At the close of that twenty day period we had received one letter back from the applicant that they had sent to the department.”

Braaten says that following the issue of the permit this August, they asked again and then received over a thousand pages of correspondence and other documents between the Department of Health and Rolling Greens Family Farms.

“When you allow an applicant to exchange over a thousand pages of documents to, as they put it, ‘update their nutrient management plan,’ essentially they’ve come up with a different application that the public never saw” said Braaten.

Dave Glatt, Environmental Section Chief at the North Dakota Department of Health, disagrees. He said the changes made were in response to residents’ and public’s comments and were designed to improve the permit.

“The permit didn’t change materially that much” he said. “But it improved the permit based on the comments to make it more protective of the environment.”

While not commenting on the complaint because he has not yet seen it, he says he felt his department followed the “science of the law” in making a determination.

“The rules are very clear on what the permit is all about and what it covers” he said. “So we can only provide comment or responses to issues that are, fall under our jurisdiction as defined by the law and the rule.”

Glatt also said that most of the correspondence was in trying to find out questions on the residents’ and public’s behalf.

“The public’s opportunity to comment is provided to that thirty to forty-five days, whatever is provided, some cases it is a lot longer than that,” he said. “They provide their comments, and then it’s our task to go find and respond to each of those comments. And as part of our response, we’ll seek information to where we can get it and sometimes that’s asking the applicant to provide some additional information in response to the questions that we have.”

Glatt said that the public usually won’t get in the middle of that because “they’ve already asked the question.” He said it was possible that it was correct that they didn’t get ahold of the information until after the permit was issued, but that was still “following the law.”

“There was nothing in there that was not following the law” he said. “They’re asking for an additional comment period which is not provided in the law.”

Glatt also added that the permit had been reviewed by Dr. Dwelle, the State Health Officer, for independent review, before approval.

Another resident of Buffalo, Alan Dostert, who spoke at the press conference, felt that many of the health concerns expressed by the residents have gone unanswered. He said the group had logged over 2,500 hours of research, producing nearly 2,000 pages of public testimony on health concerns, effects on the watershed, concerns over the nutrient management plan, and the proposed construction of the facility. He said 477 comments were addressed by the North Dakota Department of Health, and 127 times they recused themselves as being outside of the department’s authority.

“Who will take this authority if the health department won’t?” he asked. Like Stout, he cited the department’s mission statement, and said that they would hold them accountable for that mission.

“They never once disavowed our statements as being untrue, as being misstatements,” Dostert later said, referring to the comments that the department declined to answer. “They just refused to take any kind of authority over those statements, and just let them sit there.”

Karl Rockeman, the Director of the Division Water Quality, was involved with much of the permit process. Like Glatt, he declined to comment on the appeal, which had only been filed in the Cass County Courthouse hours before.

“At this time I haven’t seen the complaint, so the department feels that our permit was delivered in accordance with our laws and our applicable design standards,” he said. “We’ll review the complaint and respond accordingly.”

In regards to departmental authority, Rockeman said that the scope of the permit mainly had to do with water quality and some odor issues. He said there are many issues that fall outside the scope of the department’s jurisdiction for the permit, including some health issues brought up that could not be addressed under state law.

“The permit that was issued is under water quality, pollution prevention rules” he said. “And so the permit deals with those issues…So ones [comments] that dealt with things outside the department’s jurisdiction which were given through the law and the legislature are not something that we can address as part of the permit or in response to the comments.”

Many of the replies to the comments given by the health department, available on their website, consisted of explanations and many referrals to state law or previous explanations.

In replies to the comments, some of the areas the Health Department recused itself from include concerns the residents of Buffalo still want addressed. Road quality, property values, who will be hired by the hog farm, where the farm will be getting water for its hogs, potential fertilizer competition with local residents, taxes, and “quality of life” were all some of issues listed by the department as outside the scope of its permit and the department’s authority. Also listed were questions about investors, whether money generated would benefit the state, a concern about flammable build-up of hog remains, and questions about the process of the purchase of the land itself.

Dr. Barry Kerkaert, Vice President of Pipestone, the company managing Rolling Greens Family farms, has not yet reviewed the appeal, but said that he was “disappointed” and is “suspicious it’s a frivolous appeal to try and frustrate the state and ourselves” in regards to their Concentrated Animal Feeding Operation (CAFO) application.

“We do have 100% confidence in the state’s Department of Health and their review of our application, which they took nearly eleven months to do” he said. “I guess we’ll just be patient and go through the process, and we fully expect the court system to support the state of North Dakota and the Department of Health.”

Kerkaert says the changes to the permit have been “minimal” and felt that the Department of Health has done a “fantastic and thorough job” addressing “the issues that are relevant” raised in March. He said that he understood some of the concerns of the residents, but felt that many of them were raised because that community was unused to livestock production.

“From our company’s perspective many of the concerns are fear-driven concerns, and not legitimate concerns” he said.

Of the points the Department of Health recused itself from, Kerkaert said many were not relevant to the permit, but that some would be addressed by the company. In terms of some of the issues raised, he said that from his company’s perspective, there would be no lost property values as livestock production has only increased them and that the company would keep the roads in good condition. With regard to environmental issues, Kerkaert said that as the proposed hog farm is a “zero-discharge facility,” all the manure will be used as natural fertilizer, and says that such facilities are far better than previous operations.

“What’s so ridiculous is the hypocritical view on these facilities and what they mean to our society,” he said. “With them we can make more food with less resources and be more environmentally friendly than our grandfathers.”

A separate possible obstacle to the permit regarding zoning laws in Howes Township was one of the issues brought up to the Department of Health. The land where the proposed hog farm is to be built belongs to the township, and the Health Department acknowledges a “possible dispute” due to their ordinances that were changed in February. In this case, the Health department stated that it “does not determine the applicability or validity of zoning ordinances” and that the Approval to Operate “does not remove the permitee’s responsibility to comply with other local, state, and federal requirements.”

Kerkaert said that the local zoning ordinance in place when they originally applied would allow a CAFO to be built. Although Howes Township has changed its ordinances since then, he said the company does not believe those changes are relevant to Rolling Greens’ project and that they do not need a permit from the township.

While Howes is not an issue in the current lawsuit, other issues dealing with permits will be part of the Concerned Citizens claims.

In addition to residents of the town, two politicians running for election in District 22, which contains Buffalo, were present to offer support to the Concerned Citizens of Buffalo. Marijo Peterson and Allan Peterson, the two candidates for the North Dakota House of Representatives in that district, have come out in favor of the citizens filing to overturn the permit. Both are Dem-NPL candidates.

Speaking in support of the residents, Marijo Peterson invoked her own small-town upbringing in her own decision. “I realized that these families are not anti-agriculture, or just concerned neighbors,” she said. “They are fighting tooth and nail for their community, their farms, their businesses, their health and well-being, and for their way of life. I also realized that if this industrial hog farm is built in Buffalo, it will happen to other communities too.”

Messages left for the Republican candidates for that district, Michael Howe and Brandy Pyle, were not returned. Steven Allard, the Democratic senatorial candidate, has already offered his support. Current state senator Gary Lee did not reply for comment at the time.

Currently there are several hog farms in the state, and a current proposed hog farm in Ransom County, North Dakota has a public notice out, according to Health Department officials.