R.D. Offutt Farms seeks clarity on water appropriations authority in Minnesota

Today, RDO filed for a declaratory judgment asking the court to provide the clarity that we and other farmers need when it comes to regulatory authority over water use. Since the 1930s, the State of Minnesota has overseen sustainable water use. While the existing system has worked to protect natural resources, the White Earth Tribe last year passed an ordinance that gives the tribe jurisdiction over all water use, not only on the reservation, but also within five miles of the reservation, and applies to non-tribal members, private landowners and all water users who have existing water appropriations permits from the State of Minnesota. RDO is asking the court to answer the question: who oversees water permitting in Minnesota?

Based on both scientific studies and legal precedents, we believe that the state should be regulating water use throughout Minnesota for the following reasons:

  1. State and federal regulations have been protecting natural resources for decades; there is no evidence-based environmental need for additional regulations. The existing federal, state and local regulations are working well to protect the state and tribe’s natural resources. A recent MN DNR report on the Straight River (where RDO farms on and off the White Earth Reservation) indicates that aquifer levels have been stable and resilient and there is no concern for long-term aquifer sustainability. In the same area, the Minnesota Pollution Control Agency recently released the Crow Wing Watershed Restoration and Protection Strategy update, which indicates the watershed is healthy and water quality conditions have not changed in more than ten years.
  2. There are clear legal precedents establishing the limits of tribal oversight on non-tribal members. In rulings by the US Supreme Court and US Court of Appeals for the Eighth Circuit, there is clear precedent showing the White Earth DNR lacks authority to regulate activities by non-tribal members on lands owned by non-tribal members – both on and off the reservation.
  3. Unproven, duplicative regulations could threaten our crops and our nation’s food supply. The White Earth Nation’s efforts to replace the state regulatory program create additional challenges and uncertainty for farmers. White Earth permitting fees are thirty times more expensive than MNDNR permits, the approval process could take up to three years to complete and the decision criteria has not been provided. Because of potential delays associated with the tribe’s ordinance, farming operations could be shut down on the reservation. This will have a profound impact not just on our farms, but on the farms of our neighbors, our team members, our suppliers, our customers who have already purchased the crop, and our communities who rely on the stability of the regional agricultural economy to sustain them. The White Earth ordinance is scheduled to go into effect on May 5, 2024 – at a time when many crops have already been planted and are contractually committed to customers to ensure our nation’s food supply remains strong and stable.

As a family-owned and operated farm, RDO has grown crops alongside the White Earth Nation for more than 40 years and we consider the tribe to be an important neighbor. Our RDO team members live, work and raise families where we farm. Like our White Earth neighbors, we are dedicated to protecting the soil and water that sustain us and want to preserve these natural resources for generations to come.

We use best management practices and invest in technologies that allow our farm managers to monitor the soil moisture and use only as much water as is needed by the crops. In our annual water use reports, provided to the Minnesota DNR, there is clear evidence showing how these practices work year over year. In the past 30+ years, we have used at or below our allocated water permit amount 98% of the time on land within and surrounding the reservation. Those instances that were out of compliance happened during drought years, when the rainfall was simply not sufficient to sustain the crops.

When it comes to water stewardship in Minnesota, we all have a role to play. When it comes to who is overseeing water permitting in Minnesota, we believe that the state should remain the final authority and trust that the court will agree.