A South Central District Court decision to allow the Fred Berger feedlot to proceed in Morton County has been appealed to the North Dakota Supreme Court.

Donald Hagerott and Mark Hagerott's attorney filed the appeal against the Morton County Commission on June 16, according to court documents.

In December, South Central District Judge Bruce Haskell denied overturning the Morton County Commission's decision to approve the feedlot. Haskell ruled the county's approval of the feedlot permit was not arbitrary, capricious or unreasonable.

The county commission's consent is dependent upon approval from the North Dakota Health Department.

Dennis Fewless, director of the Water Quality Division of the North Dakota Health Department, said Monday he has not received the completed application for the feedlot from Fred Berger.

Fewless said the department is working with Berger's engineering firm to ensure he meets compliance for a larger feedlot. That includes securing manure easements for spreading the manure near the lot.

Berger proposed the feedlot be located on a 137-acre site about 10 to 15 miles northwest of Mandan. The feedlot is expected to operate between 8,000 and 10,000 head of cattle.

The proposed feedlot has drawn a great deal of debate among residents from the Crown Butte Housing Development because of its large size, potential odor and because of concerns it could harm water supplies.

"The Hagerotts have disagreed with the decision to give Fred Berger a feedlot permit," said Tami Norgard, Hagerott's attorney from the Fargo office of the Vogel Law Firm. "The county permitted the feedlot within a quarter-mile of where the county gave the Hagerotts a permit to build a house."

Norgard said the Hagerotts' housing permit preceded the feedlot permit. She argues the housing permit was issued to the Hagerotts on May 1, 2008.

The application for the Berger feedlot followed on May 20, 2008. "The county has permitted two uses right next to each other," Norgard said.

She noted a court date is pending, but it could take until December to be heard by the higher court.

The Tribune tried to contact Berger four times.

Morton County Auditor Paul Trauger said a grain crop is now growing at the proposed feedlot site and no construction has occurred there.

Trauger said a separate feedlot is under construction about six miles south of Mandan to hold fewer than 1,000 head of livestock.

It will be located at the former Keidel Dairy farm property. Trauger said Chad Berger's operation would keep about 650 yearlings between October and May.

Trauger said numbers would be reduced to fewer than 300 head between May 15 and Oct. 15. This allows Chad Berger to keep his rodeo stock.

Trauger said a smaller operation like that would be regulated by the state and not under county jurisdiction. Chad Berger is Fred Berger's brother.

The county has sent a letter to the state Health Department, stating the operation south of Mandan will comply with Morton County's ordinance for feed lots under 1,000 head.

(Reach reporter LeAnn Eckroth at 250-8264 or leann.eckroth@;bismarcktribune.com.)