BISMARCK — About six years have passed since Dean Ulmer and Jess George began contemplating building a new livestock sale barn in North Dakota’s capital city. Now, after a few false starts brought on by health issues and zoning confusion, the partners are working to get Bismarck Livestock Auction up and running by fall.

The blue building, about a mile and a half north of Interstate 94 a few miles outside Bismarck, lacks most of its exterior doors, and little progress has been made on its interior. Dirt work hasn’t been completed, and no pens have been built.

But a commercial scale is in place where Ulmer and George plan to put the auction block, and they’re working with contractors to get back on track to fill a need for the state’s cattle industry.

“We’re going to try to do the best business we can, and hopefully we can move a lot of cattle through here,” George said.

At least four sale barns have closed in North Dakota in the past 12 or so years: Farmers Livestock Exchange in Bismarck, Northern Livestock Exchange in Minot, Linton Livestock Auction in Linton and Edgeley Livestock in Edgeley. The closures have left 11 sale barn companies in the state, North Dakota Agriculture Commissioner Doug Goehring said.

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Some of those barns, as a result, have been “swamped” with cattle, as George put it. Sales at Kist Livestock in Mandan and Napoleon Livestock in Napoleon sometimes stretch into the middle of the night during the busy fall season. Stockmen’s Livestock in Dickinson operates two barns, each with its own feeder sales.

“For convenience sake, you could probably have a couple more in the state,” Goehring said.

Another barn, George said, won’t be competition for existing facilities. It’ll be a complement and a way to deal with the crush of cattle being sold.

“I’ve been asked to do this for a long time,” George said. “I know a lot of ranchers. I’ve dealt with a lot of ranchers. I’ve sold their cattle. And they always say, ‘boy, we’re in need of another sale barn.’”

Feeding operation or sale barn?

Ulmer and George applied for and received permits in 2014. But Ulmer had some health problems throughout 2015-16 that kept them from starting construction within a two-year window allowed in the process. They reapplied in 2018, receiving their permits in October.

With permission from the city of Bismarck in hand, they started construction.

“They were told they were good to go,” attorney Chris Nyhus said.

But by February, construction would stop as confusion over the city’s zoning regulations began.

The proposed site of Bismarck Livestock Auction sits outside of Bismarck city limits by several miles. However, it is in the “roughly three mile” extraterritorial zone — an area in which the city has zoning control, Nyhus said.

Livestock sales pavilions are allowed in areas zoned A-Agricultural under the city’s zoning regulations, Nyhus explains. And that’s what the Bismarck Livestock Auction project was considered.

However, after investing about $1.5 million into the project, George on Feb. 4 received a letter from the city attorney’s office indicating the project also would be considered an animal feeding operation. Under that portion of the city’s zoning regulations, the barn could only house more than 299 animals on 44 or fewer days of the year.

Those restrictions would have made the business non-viable. So, construction stopped, and the partners appealed the city attorney’s determination to the Bismarck Board of Adjustment, a six-member panel that considers administrative appeals in the city.

Nyhus explained his clients’ contention is that feeding of animals is an incidental use of the facility, not the purpose of it.

Dave Glatt, director of the North Dakota Department of Environmental Quality, said his department determined that Bismarck Livestock Auction would not need a state permit to operate as a confined animal feeding operation. For that to take place, the barn would regularly need to house more than 1,000 head of livestock.

“Then it became a local zoning issue,” Glatt said.

Ben Ereth, director of the Community Development Department for the city of Bismarck, said the city earlier had been under the impression that the barn would move fewer cattle.

“We felt it met the definition of an animal feeding operation,” Ereth said.

Nyhus contended the city was improperly reading two ordinances together: one which permitted livestock sales pavilions in A-Agricultural Zones and one which listed permitted farming practices in the extraterritorial zone.

The city and the state definitions of animal feeding operations are not identical, adding to some of the confusion. Glatt said there are two sale barns in the state permitted as animal feeding operations: Bowman Auction Market and Wishek Livestock Sales. If the Bismarck Livestock Auction were to house more than 1,000 head over a 45-day period, the state would consider requiring permitting, he said. However, barns in the state that routinely handle those kinds of numbers are not permitted as animal feeding operations.

On June 6, the Board of Adjustment unanimously ruled with Ulmer and George, finding that the barn was not an animal feeding operation under city code.

“The Board of Adjustment was very conscientious about this,” Nyhus said.

The city could appeal the decision during a 15-day window that ends June 21. According to Ereth, no decision had been made as of June 10. Nyhus hopes the city does not appeal, especially given the unanimous decision by the Board of Adjustment.