A farmer says the White Earth Nation does not have authority to stop him from pumping river water to irrigate land he owns within the reservation — marking the second federal lawsuit to challenge the tribe’s latest water rules.
Farmer pursues fresh challenge to White Earth Nation over Minnesota tribe’s water rules
A smaller farmer is now challenging permits for river water use, after showdown with potato-growing conglomerate.
The Minnesota Star Tribune
August 23, 2024 at 7:57PM
The Ojibwe band counters that it’s trying to safeguard the water that supports wild rice and other resources that tribal members hunt, fish and gather.
The suit is a new challenge to how White Earth manages water in the Pineland Sands, a sensitive ecosystem that extends from the southern part of the reservation into central Minnesota.
David Vipond has raised crops for 35 years and currently farms roughly 1,000 acres on the reservation. Vipond applied for and received a permit from the Minnesota Department of Natural Resources in August 2023 to pump up to 65.2 million gallons of water per year from the nearby Wild Rice River.
Last year, White Earth passed an ordinance requiring an additional tribal permit for water users that pump more than 10,000 gallons a day or a million a year.
Farmers on the reservation have “always been regulated by the state of Minnesota, and and now, all of a sudden, the tribe thinks that they could control our private land,” Vipond said in an interview.
In a federal suit filed earlier this month, Vipond claims he is not subject to tribal court, where he has a pending case over the water usage, and names tribal court Judge David DeGroat and White Earth Director of Natural Resources Monica Hedstrom as defendants.
Michael Fairbanks, chairman of the White Earth Nation Reservation Business Council, said in a statement that multiple Supreme Court court cases have established that native tribes can regulate resources such as water — including when the regulation affects non-tribal members, like Vipond.
White Earth is an open reservation, meaning non-band members can buy land there, and most of the land is privately owned. Tribal government owns about 10% of it. Private land ownership is mixed between members and non-members.
White Earth’s water protection ordinance originally applied to the reservation and land up to five miles from its borders. R.D. Offutt Farms, which owns or operates 10 potato farms in Minnesota and uses high-capacity irrigation wells, sued to challenge the rule this spring.
The potato-grower argued in federal court that White Earth’s new regulation should not apply because the firm was not part of the band.
White Earth later backed down on parts of its rule, deciding not to apply it outside of reservation boundaries. It also decided to refrain from enforcing the ordinance on any user that already had a Minnesota DNR permit before the tribe’s rule was passed — which includes R.D. Offutt. Vipond, however, obtained his state permit after the tribe’s rule was in place.
Despite the band’s action, the lawsuit is “still pending” in court, said company spokeswoman Jennifer Maleitzke.
In addition to farming, Vipond and his family run Pro Ag Service & Insurance, which sells crop insurance to other farmers in the area. He said it’s possible that the tribal rules could affect his crop insurance business if they curb the practices of other farmers too, but that he filed the lawsuit to protect his own farm.
In tribal court, White Earth DNR claimed the irrigation “would have serious and substantial adverse effects on the wild rice, baitfish, sturgeon, and other treaty resources.”
Mike Ladue, a farmer on the reservation who is a tribal member, said White Earth’s claims about Vipond’s water use are overblown, because he’s not trying to use groundwater, and because the water on Vipond’s land flows away from major wild rice beds.
Fairbanks said the waters on the reservation are interconnected, and that the tribe couldn’t make decisions looking at single users in isolation. “The current water crisis on the reservation was born out of doing just that, and we cannot sustain this outdated approach,” he wrote.
The tribe is conducting a more comprehensive water study that will conclude with new policy recommendations at the end of 2026, Fairbanks wrote. The University of Minnesota is also part of the investigation into irrigation in the region.
While the study continues, “We must be cautious about adding additional water appropriations that may exacerbate the current water crisis on the reservation,” Fairbanks said.
On a 3-2 vote, the state Public Utilities Commission picked a route that is farther from an area sacred to many tribes than Magellan Pipeline Company wanted.
