High Plains v. Fall River Cty. , 873 N.W.2d 51 ( 2015 )


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  • #27293-rev & rem-GAS
    
    2015 S.D. 94
    IN THE SUPREME COURT
    OF THE
    STATE OF SOUTH DAKOTA
    ****
    HIGH PLAINS RESOURCES, LLC,                  Applicant and Appellee,
    v.
    FALL RIVER COUNTY
    BOARD OF COMMISSIONERS,
    AND SUE GANJE, IN HER
    CAPACITY AS FALL RIVER
    COUNTY AUDITOR ONLY,                         Respondents and Appellants.
    ****
    APPEAL FROM THE CIRCUIT COURT OF
    THE SEVENTH JUDICIAL CIRCUIT
    FALL RIVER COUNTY, SOUTH DAKOTA
    ****
    THE HONORABLE ROBERT A. MANDEL
    Judge
    ****
    BRAD P. GORDON
    KENNETH E. BARKER
    TIMOTHY J. VANDER HEIDE of
    Barker Wilson Law Firm, LLP
    Belle Fourche, South Dakota                  Attorneys for applicant and
    appellee.
    JAMES G. SWORD
    Fall River County
    State’s Attorney
    Hot Springs, South Dakota                    Attorneys for respondents and
    appellants.
    ****
    ARGUED OCTOBER 7, 2015
    OPINION FILED 12/09/15
    #27293
    SEVERSON, Justice
    [¶1.]        High Plains sought a writ of prohibition. It alleged that the Fall River
    County Board of Commissioners (Board), acted outside its authority by rescinding
    Resolution 2014-09, which approved High Plains’ proposed petroleum contaminated
    soil farm. Further, it alleged that a referral of a similar, subsequently enacted
    Resolution 2014-16 would be of no legal effect. The circuit court agreed and found
    that High Plains did not have a plain, speedy, and adequate remedy in the course of
    law. Therefore, it issued a writ setting aside the rescission of Resolution 2014-09
    and prohibiting the ballots on the referendum election on the second Resolution
    2014-16 from being counted. The Board appeals. We reverse and remand with
    instructions to quash the writ because High Plains had an alternative remedy
    through an appeal of the Board’s decision to rescind Resolution 2014-09.
    Background
    [¶2.]        Keith Andersen of Andersen Engineering contacted the Fall River
    auditor, Sue Ganje, and asked her to place him on the Board’s March 25, 2014
    agenda so he could present a resolution to authorize a petroleum contaminated land
    farm. The item was listed on the agenda as “Keith Andersen, Andersen
    Engineering – Plat; Review of Resolution for Land Farm General Permit”.
    Anderson did not provide a proposed resolution to Ganje; instead he brought it with
    him to the March 25, 2014 meeting. At the meeting, Keith Andersen presented the
    proposed resolution on behalf of High Plains Resources, LLC, and sought approval
    of a petroleum contaminated soil farm. He needed the Board’s approval so High
    Plains could apply for a permit from the South Dakota Department of Environment
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    and Natural Resources (DENR). An application for a solid waste facility permit
    must “include a resolution by the governing body of the county in which the facility
    is to be located approving the proposed facility[,]” and such approval must be
    “within no more than twenty-four months before the issuance of the new permit[.]”
    SDCL 34A-6-103. One Commissioner abstained from voting on the resolution due
    to a conflict, but the remaining members of the Board voted to approve Resolution
    No. 2014-09, which stated:
    WHEREAS, High Plains Resources, LLC desires to
    establish a soil landfarm facility for the purpose of solid waste
    management; and
    WHEREAS, Fall River County Board of Commissioners
    has approved siting the proposed facility, and
    WHEREAS, the siting of the proposed facility is not in
    conflict with any established zoning laws or ordinances; and
    WHEREAS, High Plains Resources, LLC will file a solid
    waste application with the South Dakota Department of
    Environment and Natural Resources (DENR); and
    WHEREAS, DENR will review that application to
    determine that the facility can be operated within the South
    Dakota Laws and regulations; and
    WHEREAS, the Board of Minerals and Environment will
    review, modify, approve, or deny the permit if the tentative
    recommendations and/or conditions of the permit are contested
    by any interested party; and
    WHEREAS, the County Commission of Fall River County
    is required by South Dakota law SDCL 34A-6-103 to approve of
    a solid waste facility prior to the issuance of a solid waste
    permit;
    IT IS THEREFORE RESOLVED that the County
    Commission of Fall River County hereby approves construction
    and operation of the proposed facility to be operated under the
    terms of a solid waste permit to be issued by the Board of
    Minerals and Environment.
    Dated at Fall River County, South Dakota this 25th day of
    March, 2014.
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    The minutes from the meeting, which included the above resolution, were published
    in the Hot Springs Star on April 1, 2014, and in the Edgemont Tribune on April 2,
    2014. Those minutes were also approved unanimously at the Board’s next
    scheduled meeting on April 17, 2014. Resolution No. 2014-09 became effective “on
    the twentieth day after its completed publication[.]” See SDCL 7-18A-8.
    [¶3.]       Apparently based on concerns regarding adequate public notice prior to
    adoption of Resolution 2014-09, the Board rescinded the resolution on June 19,
    2014. It was replaced by the similar Resolution No. 2014-16, which provided:
    WHEREAS, High Plains, LLC desires to establish a solid
    waste facility for a petroleum contaminated soil farm for the
    purpose of solid waste management; and
    WHEREAS, Fall River County Board of Commissioners
    has approved siting the proposed facility, and
    WHEREAS, the siting of the proposed facility is not in
    conflict with any established zoning laws or ordinances; and
    WHEREAS, High Plains Resources, LLC will file a solid
    waste application with the South Dakota Department of
    Environment and Natural Resources (DENR); and
    WHEREAS, DENR will review that application to
    determine that the facility can be operated within the South
    Dakota Laws and regulations; and
    WHEREAS, DENR may recommend the approval of the
    permit with conditions adequate to safeguard the environment;
    and
    WHEREAS, the Board of Mineral and Environment will
    review, modify, approve, or deny the permit if the tentative
    recommendations and/or conditions of the permit are contested
    by any interested party; and
    WHEREAS, the County commission of Fall River County
    is required by South Dakota law SDCL 34A-6-103 to approve of
    a solid waste facility prior to the issuance of a solid waste
    permit;
    IT IS THEREFORE RESOLVED that the County
    Commission of Fall River County hereby approves construction
    and operation of the proposed solid waste facility for a petroleum
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    #27293
    contaminated soil farm to be operated under the terms of a solid
    waste permit to be issued by the Board of Minerals and
    Environment and an appropriate bond be required.
    Dated at Fall River County, South Dakota this 19th day of June,
    2014.
    On July 18, 2014, the required number of voters of Fall River County filed a petition
    for a referendum of Resolution No. 2014-16, thereby suspending its effective date.
    See SDCL 7-18A-8. On August 7, 2014, the Board approved placement of
    Resolution No. 2014-16 on the November 4, 2014 general election ballot.
    [¶4.]        On September 19, 2014, High Plains filed an affidavit and application
    for a writ of prohibition. High Plains sought a writ that would order the county to
    desist and refrain from counting the votes cast regarding Resolution No. 2014-16.
    High Plains asserted that the Board exceeded its authority by rescinding the
    original resolution, Resolution No. 2014-09. It contended that two conditions under
    SDCL 34A-6-103 must be met before the Board may rescind approval of a solid
    waste facility. The rescission must come before DENR issues a permit and then
    only if the size, purpose, or location of the facility has significantly changed. See
    SDCL 34A-6-103. 1 There was no dispute that DENR had not issued a permit, but
    1.      SDCL 34A-6-103 provides in full:
    Any application to the Board of Minerals and Environment or the
    secretary for a new permit or first authorization to operate under a
    general permit for a facility for the transportation, storage, treatment,
    or disposal of solid waste or medical waste pursuant to this chapter
    shall include a resolution by the governing body of the county in which
    the facility is to be located approving the proposed facility. Approval
    by the county within no more than twenty-four months before the
    issuance of the new permit or first authorization by the Board of
    Minerals and Environment or the secretary is a condition for the
    issuance of the permit or authorization. Approval granted under this
    (continued . . .)
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    #27293
    High Plains averred that no change in the size, purpose, or location of the proposed
    petroleum contaminated soil farm had occurred. The circuit court agreed and
    granted an alternative writ of prohibition. The writ set aside the rescission of
    Resolution No. 2014-09 and ordered the county to desist and refrain from counting
    the votes regarding Resolution No. 2014-16. Finally, the writ ordered that the
    County show cause at a hearing as to why the circuit court should not absolutely
    restrain the County from any further proceedings. The circuit court held a hearing
    on October 31, 2014, and announced that its decision remained the same as prior to
    the hearing; therefore it would be granting a writ of prohibition. The court did not
    enter findings of fact, conclusions of law, or its permanent writ at that time.
    [¶5.]        The Board subsequently sought special relief from this Court and
    moved for a stay of the circuit court’s alternative writ of prohibition. We granted
    the motion for stay as to all proceedings in the circuit court until December 1, 2014.
    However, the stay allowed the circuit court and parties to finalize the findings of
    fact, conclusions of law, and final writ contemplated at the October 31, 2014
    hearing. As the writ was stayed at the request of the County, Resolution No. 2014-
    16 was on the November election ballot. Inexplicably, despite our stay of the writ of
    prohibition, which allowed the election to proceed, county officials did not count the
    votes, and at oral argument the County offered no legal basis for not doing so. See
    _________________________________________________
    (. . . continued)
    section may only be rescinded by the county before the new permit or
    first authorization is issued and only if a significant change in the size,
    purpose, or location of the proposed facility has occurred.
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    #27293
    SDCL chapter 12-20 (providing for the return and cavass of votes); SDCL 12-26-28
    (criminal offenses relating to election on submitted question).
    [¶6.]        The circuit court filed its findings of fact and conclusions of law and
    issued the permanent writ of prohibition on November 21, 2014. It found that no
    change in the size, purpose, or location of the proposed petroleum contaminated soil
    farm had occurred. It further found that the rescission of Resolution No. 2014-09
    was in excess of the Board’s authority and High Plains had no plain, speedy, and
    adequate remedy in the course of law. On January 12, 2015, we entered an order
    quashing our previous order, which had granted the motion for stay, and dismissing
    the Board’s application and motion for special relief for lack of jurisdiction.
    [¶7.]        The County now appeals the permanent writ, contending that: (1) High
    Plains had a plain, speedy, and adequate remedy in the ordinary course of law that
    precluded the issuance of a writ of prohibition; (2) open meetings and open records
    violations occurred that voided the passage of Resolution No. 2014-09; and (3)
    Resolution No. 2014-09 did not properly set forth the location, purpose, and size of
    the proposed petroleum contaminated soil farm.
    Standard of Review
    [¶8.]        “Decisions by a circuit court involving mandamus or prohibition are
    discretionary; therefore, the standard under which we review a [circuit] court’s
    decision is abuse of discretion.” H & W Contracting, LLC v. City of Watertown, 
    2001 S.D. 107
    , ¶ 24, 
    633 N.W.2d 167
    , 175. However, the determination of whether a
    plain, speedy, and adequate remedy exists at law is a question of law we review de
    novo. See McElhaney v. Anderson, 
    1999 S.D. 78
    , ¶ 6, 
    598 N.W.2d 203
    , 205.
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    #27293
    Analysis
    [¶9.]          “The writ of prohibition . . . arrests the proceedings, administrative or
    judicial, of any tribunal, corporation, board, or person, when such proceedings are
    without or in excess of the jurisdiction of such tribunal, corporation, board, or
    person, or are without or in excess of the powers of authority conferred by law upon
    such tribunal, corporation, board, or person.” SDCL 21-30-1. It “may be issued by
    the Supreme Court and circuit courts, to an inferior tribunal, or to a corporation,
    board, or person, in all cases where there is not a plain, speedy, and adequate
    remedy in the ordinary course of law.” SDCL 21-30-2. We have explained that a
    writ of prohibition is an “extraordinary remedy” that will only be issued if an
    applicant has no plain, speedy, and adequate remedy in the ordinary course of law.
    See Apa v. Butler, 
    2001 S.D. 147
    , ¶ 6, 
    638 N.W.2d 57
    , 60; S.D. Bd. of Regents v.
    Heege, 
    428 N.W.2d 535
    , 537 (S.D. 1988).
    [¶10.]         Thus, we begin by determining whether High Plains had a plain,
    speedy, and adequate remedy in the ordinary course of law. The Board asserts that
    High Plains had a remedy by way of direct appeal of the Board’s decision. 2 SDCL 7-
    8-27 provides a right to appeal “[f]rom all decisions of the board of county
    commissioners upon matters properly before it . . . by any person aggrieved[.]” High
    Plains contends that the conditions necessary to rescind the resolution under SDCL
    34A-6-103 were not met; therefore, SDCL 7-8-27 does not provide a remedy because
    2.       The Board also contends that a remedy exists in South Dakota’s election
    contest statutes. See SDCL chapter 12-22. Resolution No. 2014-09 was not
    subject to an election that High Plains could contest, and therefore an
    election contest could not provide a remedy through which High Plains could
    challenge its rescission.
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    rescission of Resolution No. 2014-09 was not a “matter[] properly before” the Board.
    High Plains relies on Lewis v. Bd. of Comm’rs of Brown Cty., to support its
    assertion. 
    44 S.D. 4
    , 
    182 N.W. 311
    (1921). “In Lewis . . . this [C]ourt held that
    county commissioners violated a specific statutory requirement that county
    commissioners shall designate official county newspapers only during the month of
    January when they adopted a resolution revoking such a designation of one paper
    and filling the vacancy by designating another in June.” Walker v. Bd. of Cty.
    Comm’rs of Brule Cty., 
    337 N.W.2d 807
    , 808 (S.D. 1983). The statutory provision at
    issue in Lewis mandated that the county commission designate newspapers “[a]t its
    first regular meeting in January of each year[.]” 
    Lewis, 182 N.W. at 312
    . No
    provision allowed the commission to designate official newspapers at any time other
    than the first meeting. 
    Id. Therefore, the
    statute “specifically limited jurisdiction
    of [the] county commissioners.” 
    Walker, 337 N.W.2d at 808
    .
    [¶11.]       Unlike Lewis, the statute at issue here does not restrict the time
    during which the Board must consider rescission of a resolution. And the statute
    does not require that the conditions under SDCL 34A-6-103 be proven to exist
    before the Board may consider rescission—i.e., that a significant change in the size,
    purpose, or location of the proposed facility has occurred. The circuit court found
    that “the rescission of Resolution [No.] 2014-09 was not a matter [that] was properly
    before the Commission in that the [m]otion to rescind the resolution was beyond
    and outside of the authority of the Commission as limited by SDCL 34A-6-103.”
    Such a position conflates deliberation of the matter and final action. If we were to
    agree with High Plains’ position, the Board would be acting improperly if it
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    considered and subsequently rejected a proposed rescission based on a
    determination that a significant change had not occurred. It has authority to
    rescind county approval of the solid waste facility when the two conditions under
    SDCL 34A-6-103 are met. The Board must be allowed to deliberate whether those
    conditions have been met. Thus, consideration of the issue was not in excess of the
    Board’s jurisdiction.
    [¶12.]         Under SDCL 7-8-27, High Plains had a right to appeal the Board’s
    decision to rescind Resolution No. 2014-09. This right to appeal is a plain, speedy,
    and adequate remedy in the ordinary course of law. Yet High Plains did not appeal
    the Board’s decision within the statutory time and the rescission of Resolution 2014-
    09 became effective 20 days after publication. See SDCL 7-8-29; SDCL 7-18A-8.
    Because rescission was a matter properly before the Board and an appeal pursuant
    to SDCL 7-8-27 provided a plain, speedy, and adequate remedy in the ordinary
    course of law, the court erred by granting the writ of prohibition based on the
    Board’s allegedly improper rescission. 3
    [¶13.]         Since rescission of Resolution No. 2014-09 was not appealed, we do not
    reach the question whether the rescission was in compliance with the statutory
    3.       Although the Board contends that the existence of a separate, pending appeal
    in circuit court by High Plains also indicates an adequate remedy at law, the
    pending appeal does not address the Board’s separate decision to rescind
    Resolution No. 2014-09. It only “appeals and challenges as factually
    unsupported and legally defective Defendant’s decision to permit the referral
    of Resolution [No.] 2014-16.” The rescission of Resolution No. 2014-09,
    adoption of Resolution No. 2014-16, and referral of Resolution No. 2014-16
    were separate actions by the Board based on separate motions as reflected in
    the Board’s minutes. Thus, we do not use the pending appeal’s existence as
    evidence of a remedy at law for the act of rescinding Resolution No. 2014-09.
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    conditions in SDCL 34A-6-103. Because Resolution No. 2014-09 is no longer in
    effect, the court erred when it determined that the referral of Resolution No. 2014-
    16 would have “no legal force or effect.” Therefore, the circuit court erred in
    ordering that the Fall River County Board of Commissioners and County Auditor be
    restrained from counting or otherwise tabulating the votes cast in the November 4,
    2014 referendum election concerning Resolution No. 2014-16.
    [¶14.]       The Board urges us to determine whether a violation of open election
    meetings and open records law occurred and whether that voided the passage of
    Resolution No. 2014-09. It further contends that Resolution No. 2014-09 did not
    properly set forth the location, purpose, and size of the proposed facility and
    therefore SDCL 34A-6-103 does not require a change before the Board may rescind
    prior approval. The Board argues that consideration of these issues is necessitated
    by High Plains’ assertion that Resolution No. 2014-09 cannot be rescinded by the
    County. These issues are rendered moot by the rescission of Resolution No. 2014-
    09. Since the rescission was not appealed, Resolution No. 2014-09 is no longer in
    effect.
    Conclusion
    [¶15.]       The Board’s action in considering the rescission of Resolution No. 2014-
    09 did not exceed its jurisdiction. As to whether the Board complied with SDCL
    34A-6-103 or exceeded its powers when it rescinded Resolution No. 2014-09, High
    Plains had an alternative remedy through an appeal to the circuit court. The
    existence of such a remedy precluded the “extraordinary remedy” of a writ of
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    prohibition. As a result, we reverse and remand to the circuit court with instruction
    to quash the writ.
    [¶16.]       GILBERTSON, Chief Justice, and ZINTER, WILBUR, and KERN,
    Justices, concur.
    -11-
    

Document Info

Citation Numbers: 2015 SD 94, 873 N.W.2d 51

Filed Date: 12/9/2015

Precedential Status: Precedential

Modified Date: 1/12/2023