(This article follows up on previous AWI Quarterly articles and incorporates historical information from Chapter 5 of Marlene Halverson’s report “The Price We Pay for Corporate Hogs,”  published by Institute for Agriculture and Trade Policy.  Please view the report online at www.iatp.org/hogreport)

Some alert Tribal members, having heard about the adverse environmental, animal and human welfare consequences of hog factories elsewhere, learned of the lease agreement.  Recognizing how culturally and economically disadvantageous the lease agreement would be for the Tribe, they began what became a tortuous, years-long struggle to extricate the Tribe from the agreement.

Tribal members and neighboring ranchers who opposed the lease agreement formed a group called the Concerned Rosebud Area Citizens and sought help from South Dakota Peace and Justice Center – which, in turn, sought help from Prairie Hills Audubon Society and Humane Farming Association in fighting the hog factory.  These groups brought suit in Federal District Court in Washington, DC against the US Bureau of Indian Affairs because the local Bureau’s approval had violated the National Environmental Policy Act (NEPA) by not requiring an Environmental Impact Statement (EIS) prior to approval.

When the BIA’s attorneys at the Department of Justice looked into the case, they quickly realized they would lose and proposed a settlement, which was negotiated in about two months.  However, in January 1999, Assistant Interior Secretary for Indian Affairs Kevin Gover voided the lease because the environmental review process had been inadequate, and an EIS should have been required.  Sun Prairie/Bell Farms then sued the BIA in South Dakota’s Federal District Court, aiming to overturn Gover’s decision.  The Department of Justice then defended the BIA (the government), side by side with the opposing groups.

Federal District Judge Charles Kornmann quickly issued the first of a series of preliminary injunctions against the government, directing it and the opposing groups not to interfere with construction of the hog factory until he had studied the case and decided whether to make his injunctions final.  His injunctions had the effect of getting the construction on track and keeping it there.  As Kornmann studied the case, a new Tribal election took place and Tribal members voted in a Tribal Council whose members opposed the hog factory project.  The new Tribal Council quickly called for a referendum of the people regarding acceptance of the factory.  In the referendum, the hog factory was rejected by a majority of the voting Tribal members.

However, during the year it took Judge Kornmann to decide to make his temporary injunction final, one of the proposed hog sites was completed and put into operation.  Once Kornmann made the temporary injunction against the government and opposing groups final, the Department of Justice (on behalf of BIA) and the new Tribal Council could appeal the injunction in the Federal 8^th Circuit Court of Appeals, which they did.  Eventually, the Court of Appeals ruled in favor of the hog factory opponents, overturning Judge Kornmann’s injunctions and upholding the BIA’s declaration that the lease was invalid.  Nevertheless, construction had proceeded in the meantime, and another of the 13 sites had been completed and put into operation.

Sun Prairie/Bell Farms then appealed the Court of Appeals ruling to the US Supreme Court.  AWI reported on an amazing victory for the Tribe (Spring 2003 AWI Quarterly): the US Supreme Court had refused to hear Sun Prairie/Bell Farms’ case, upholding the eighth Circuit Court of Appeals decision in favor of the opponents.  The Supreme Court’s refusal to hear the case confirmed that the lease agreement was legally invalid, and Sun Prairie/Bell Farms had no legal right to operate on Tribal lands.  On March 6, 2003, the Rosebud Tribal Council voted unanimously to shut down the two operating hog factory sites and remove them from Tribal lands. The victory, however, was short lived.

Not giving up so easily, Sun Prairie/Bell Farms brought suit in Federal District Court of South Dakota against the BIA and Rosebud Sioux Tribe, demanding financial damages and alleging the Tribe (1) violated the “Contracts Clause” of the US Constitution and (2) profited from “unjust enrichment.”  In an action that was inexplicable in light of previous court actions validating the Tribe’s and the BIA’s position, District Court Judge Richard Battey said he agreed with Sun Prairie/Bell Farms in the matter, although he did not make a ruling that the Tribe or Department of Justice (on behalf of BIA) could have appealed.  Instead, Judge Battey simply let his opinion be known and ordered the parties to try to settle the dispute among themselves.

Tribal members who had fought the lease agreement were not in favor of settling now that their case against the hog factory had been won.  After all, their legal position was sound.  The highest court in the land had refused to go against the Appeals Court ruling that had given them their victory.  Therefore, Sun Prairie/Bell Farms really had had no defensible grounds on which to sue for damages.  Neither the Tribe nor the BIA was legally liable.  Attorney Jim Dougherty, who had successfully guided the Tribe through the legal minefields that had resulted in the Appeals Court victory, pointed out that the “Constitutional” claim was frivolous because the Tribe is not subject to the US Constitution.  Furthermore, the Tribe could hardly be guilty of unjust enrichment.

In order for that to be the case, it would have had to have received a benefit, been aware that it was receiving a benefit and it would have had to be shown it was inequitable for it to retain the benefit without paying for it – none of which could be shown.  In five years of operation, the Tribe had been presented with only one profit sharing check for $11,000, which it had turned down.  Moreover, under South Dakota law, a claim of “unjust enrichment” can only be pursued if the claimant has “clean hands.”  Dougherty noted that Sun Prairie/Bell Farms had violated provisions of the lease many times by never having paid TECRO fees, rent or water use fees.

However, an election had been held and another Tribal Council (the third to have dealt with the issue) was in place.  The new owner of Sun Prairie/Bell Farms CEO Greg Fontaine had appeared before the new Tribal Council and claimed the Tribe was liable for millions of dollars.  In an outrageous and inexplicable abandonment of both the Rosebud Sioux Tribe and the law, Assistant US Attorney General Tom Sansonetti (who has since resigned) told the Tribe the government would admit liability for having acted illegally in 1999 when the BIA voided the lease agreement.  This applied pressure to the Tribal Council to settle the case according to terms the Department of Justice had negotiated with Sun Prairie/Bell Farms.

Perhaps the new Tribal Council members were more easily intimidated by Sun Prairie/Bell Farms than the previous Tribal Council had been, or perhaps they doubted the Tribe and the hog factory opponents could win in Judge Battey’s court, given that Judge Battey had let it be known where he stood.  Bullying and intimidation by Sun Prairie/Bell Farms undoubtedly also had an effect.  On April 27, 2005, the new Tribal Council voted 9-7 to accept the settlement offer the government had negotiated.  Four Council members did not vote, and Tribal members asserted that some Council members voted against straw votes in their own constituencies, which proved Tribal members did not favor the settlement.

Sun Prairie CEO Fontaine and new Tribal Council President Charles Colombe – who, some said, had favored the hog factory all along – praised the settlement.  Under the terms of the settlement, no new hog facilities are to be built, but the existing two sites (producing about 192,000 hogs per year) are allowed to operate for 20 years.  Sun Prairie/Bell Farms must pay rent to the Rosebud Sioux Tribe of $120,000 per year; $15,000 per year for water use at the site where wells have been drilled; $1.35 per 1,000 gallons of water  for three years and $1.50 per 1,000 gallons thereafter and $131,000 for past water usage.  Most of the other terms of the original lease agreement would stand.

Yet the agreement still does not guarantee environmental justice, safe and fair conditions for Tribal workers or humane conditions for the pigs who have received shockingly cruel treatment, as documented by photographs and interviews with Rosebud farm laborers in legal petitions by Humane Farming Association to the South Dakota Attorney General (Fall 2004 AWI Quarterly).  The hog factory has not shown a profit, except in its first year.  Dougherty asks, given that Sun Prairie/Bell Farms have consistently shown bad faith to date by not paying fees and rent, what guarantee is there that they will suddenly become reliable partners?  On May 19, 2005, Judge Battey approved the settlement.

Several Tribal members, including those from Rosebud Grassroots Resistance Against Oppression and Justice, said they plan to contest the settlement.  Dougherty said HFA, which has paid legal costs to date, would continue to fight for environmental justice and the rights of the Tribal members in the courts, should the Tribal members wish it.  On June 24, 2005, after the spring 2005 AWI Quarterly had gone to press, concerned Rosebud Area Citizens, Humane Farming Association, South Dakota Peace and Justice Center and Prairie Hills Audubon Society of Western South Dakota filed a new suit in Federal District Court in Washington, D.C.  The groups say the BIA cannot approve any agreement that does not require an EIS.  “We would like to see the deal suspended until they have done a complete environmental review,” said Jim Dougherty.