By Patrick Springer, Fargo Forum
The Minnesota Court of Appeals has upheld a decision by state regulators not to require an extensive environmental review of permits for a 300-acre irrigation project in the environmentally sensitive Pineland Sands.
In an opinion issued Monday, the appeals judges rejected arguments by advocacy groups including the Environmental Working Group that the project was part of a plan by Fargo, N.D.-based R.D. Offutt Co., one of the nation’s largest potato growers, to convert 7,000 acres of timberland to irrigated farming.
The environmental plaintiffs had argued that permits sought by Tim Nolte, who farms and raises livestock in Wadena County, was in effect a front for RDO, which previously owned the property and had submitted more than 50 irrigation and well permit applications for its ambitious expansion program.
But the appeals judges agreed that RDO has abandoned those plans after withdrawing most of its permit applications seeking permission to pump groundwater for irrigation.
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Although the decision is welcome, Nolte said he and his wife have been “dragged through an ordeal.”
“We don’t feel vindicated,” he said. “It’s been a bad deal for us. There’s no big celebration inside our house.”
The judges also rejected arguments that the Minnesota Department of Natural Resources failed to adequately study potential nitrate contamination, groundwater depletion or pesticide drift.
“The DNR appreciates the court's review and we will continue to take a hard look at these important environmental issues,” said Randall Doneen, a senior DNR official who oversees ecological and water resources.
Much of the environmental plaintiffs’ case involved transactions between Nolte and RDO, which the Environmental Working Group cited as evidence that the two were working together on a phased expansion that would require an environmental impact statement.
Nolte, who has farmed in the area for three decades, acquired the land for his irrigation project through a contract for deed from RDO in 2017. That agreement had provisions requiring him to make improvements on the land to allow potato farming and to lease back the land to RDO.
Those provisions were removed amid DNR scrutiny in 2018 and in 2019 Nolte bought the former RDO land outright and holds a warranty deed for the property — documentation, the court found bolster’s the DNR’s conclusion that Nolte is the landowner and operates independently from RDO, with no part in an effort to resurrect the 7,000-acre expansion plan.
“Our review of the record persuades us that the DNR’s determination that the Nolte project is not part of a phased action is based on substantial evidence,” Judge Tracey Smith wrote.
“Should R.D. Offutt decide to return to its planned 7,000-acre expansion of irrigated farming in the area, it would again need to seek permits and would be subject to environmental review.”
The Environmental Working Group, which spearheaded the legal challenge, is considering its options, including a possible appeal to the Minnesota Supreme Court.
“We are profoundly disappointed in the court’s ruling,” said Craig Cox, the Environmental Working Group’s senior vice president for agriculture.
“There is overwhelming evidence that irrigated row crop agriculture — and especially industrial potato cultivation — cannot be done in the Pineland Sands without polluting water," Cox said. "That’s why this ruling puts the water and health of tribal communities and the people that live in the area at continued risk.”
“The people in the Pineland Sands region should not be forced to drink contaminated water so the world’s biggest potato producer can sell more of its product to McDonald’s,” he added.
The Minnesota Court of Appeals found “substantial evidence” for the DNR’s conclusion that Nolte’s 300-acre irrigation project would contribute “low” or “negligible” contamination to the area, and effects can be mitigated by permit requirements.