S.D. Dep't of Gf&p v. Troy Twp. , 2017 SD 50 ( 2017 )


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  • #27981, #27982, #27986, #28008-aff in pt, rev in pt & rem in pt-DG
    
    2017 S.D. 50
    
                                          IN THE SUPREME COURT
                                                  OF THE
                                         STATE OF SOUTH DAKOTA
    
    
                                                         ****
    
                                                        (#27981)
    
    STATE OF SOUTH DAKOTA,
    DEPARTMENT OF GAME,
    FISH AND PARKS,                                                        Appellant,
    
            v.
    
    TROY TOWNSHIP, DAY COUNTY,
    SOUTH DAKOTA,                                                          Appellee.
    
    
    ---------------------------------------------------------------------------------------------------------------------
    
                                                        (#27982)
    
    STATE OF SOUTH DAKOTA,
    DEPARTMENT OF GAME,
    FISH AND PARKS,                                                        Appellant,
    
            v.
    
    TROY TOWNSHIP, DAY COUNTY,
    SOUTH DAKOTA,                                                          Appellee.
    
    
    
    
                                                         ****
                               APPEAL FROM THE CIRCUIT COURT OF
                                  THE FIFTH JUDICIAL CIRCUIT
                                  DAY COUNTY, SOUTH DAKOTA
                                                         ****
                                  THE HONORABLE JON S. FLEMMER
                                             Judge
                                                         ****
    
    
                                                                           ARGUED ON APRIL 25, 2017
                                                                           OPINION FILED 08/16/17
    ---------------------------------------------------------------------------------------------------------------------
    
                                                        (#27986)
    
    STATE OF SOUTH DAKOTA,
    DEPARTMENT OF GAME,
    FISH AND PARKS,                                                        Appellant,
    
            v.
    
    VALLEY TOWNSHIP, DAY COUNTY,
    SOUTH DAKOTA,                                                          Appellee.
    
    ---------------------------------------------------------------------------------------------------------------------
    
                                                        (#28008)
    
    STATE OF SOUTH DAKOTA,
    DEPARTMENT OF GAME,
    FISH AND PARKS,                                                        Appellant,
    
            v.
    
    BUTLER TOWNSHIP, DAY COUNTY,
    SOUTH DAKOTA,                                                          Appellee.
    
    
                                                         ****
    
    RICHARD J. NEILL
    Special Assistant Attorney General
    Pierre, South Dakota
    and
    PAUL E. BACHAND
    Special Assistant Attorney General
    Pierre, South Dakota                                                   Attorneys for appellant.
    
    
    JACK H. HIEB
    ZACHARY E. PETERSON of
    Richardson, Wyly, Wise
     Sauck & Hieb, LLP
    Aberdeen, South Dakota                                                 Attorneys for appellees.
    #27981, #27982, #27986, #28008
    
    GILBERTSON, Chief Justice
    
    [¶1.]        Troy, Valley, and Butler Townships’ respective boards of supervisors
    
    vacated portions of several section-line highways in Day County. South Dakota’s
    
    Department of Game, Fish, and Parks appealed these administrative actions to the
    
    circuit court, asserting the highways provided access to bodies of water held in trust
    
    by the State for the public. The circuit court affirmed in part and reversed in part,
    
    and the Department now appeals to this Court. The Department argues that: (1) by
    
    vacating the highways, the Townships denied public access to a public resource,
    
    (2) the highway vacations were not in the public interest, (3) the Townships’
    
    decisions were based on improper motives, (4) the Townships denied the
    
    Department due process, and (5) the circuit court incorrectly imposed the burden of
    
    proof on the Department. We affirm the circuit court’s decision in regard to Valley
    
    and Butler Townships. We reverse and remand in regard to Troy Township.
    
                              Facts and Procedural History
    
    [¶2.]        “In 1871, the Dakota Territory Legislature passed an act [that]
    
    accepted Congress’s dedication of all section lines as highways.” Douville v.
    
    Christensen, 
    2002 S.D. 33
    , ¶ 11, 
    641 N.W.2d 651
    , 654 (citing Act of Jan. 12, 1871,
    
    1870-71 Dakota Sess. Laws ch. 33). This provision carried forward into South
    
    Dakota’s codified laws. Id. “There is along every section line in this state a public
    
    highway located by operation of law, except where some portion of the highway
    
    along such section line has been heretofore vacated or relocated by the lawful action
    
    of some authorized public officer, board, or tribunal.” SDCL 31-18-1. One such
    
    board is a township board of supervisors. SDCL 31-3-6.
    
    
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    [¶3.]         This appeal involves the decisions of three townships in Day County:
    
    Troy, Valley, and Butler. 1 The Townships’ respective boards of supervisors each
    
    approved petitions to vacate highway segments within their jurisdictions. As we
    
    recently explained in Duerre v. Hepler, 
    2017 S.D. 8
    , 
    892 N.W.2d 209
    , a number of
    
    nonmeandered bodies of water have accumulated on privately owned land in Day
    
    County. While some of the highway segments vacated by the Townships could be
    
    used to access these waters, the circuit court found that overall, the vacations did
    
    not materially alter access to the nonmeandered bodies of water.
    
    [¶4.]         Troy Township approved two petitions to vacate a total of 22 highway
    
    segments within its jurisdiction. The first was submitted on May 13, 2014; the
    
    second, July 9. The segments do not aid in traversing the Township; in fact, most of
    
    the segments are submerged, in disrepair, or unimproved. While some could
    
    provide public access to nonmeandered bodies of water, the highways at issue
    
    primarily provide access to land adjoining the highways, and other highways that
    
    provide access to those bodies of water remain open.
    
    [¶5.]         The petitions were prepared by the Township’s clerk and given to a
    
    Township resident for circulation. Each petition was signed by six Township voters
    
    and verified by all three members of the Troy Township Board of Supervisors:
    
    Chairman Thad Duerre and Supervisors Larry Herr and Daniel Grode. The
    
    Township scheduled a public hearing for May 27 to consider the first petition and
    
    
    
    1.      In this opinion, we refer to Troy, Valley, and Butler Townships collectively as
            “Townships.” The singular form “Township” is used to refer to Troy, Valley,
            and Butler Townships individually when such use unambiguously indicates
            the specific township referred to.
    
                                               -2-
    #27981, #27982, #27986, #28008
    
    published notice of the hearing on May 19 and 26. The Department contacted the
    
    Township on May 19 and objected to several of the proposed vacations, claiming
    
    that those highways led to the Lily Game Production Area (GPA). At the May 27
    
    hearing, the Township decided to table the petition for approximately 30 days. The
    
    Township published notice on June 16 and 23 for the subsequent hearing scheduled
    
    for June 26. At the second hearing, which the Department did not attend, the
    
    Township voted to vacate 12 highway segments out of the 15 proposed in the
    
    petition.
    
    [¶6.]        The Township scheduled a public hearing for July 22 to consider the
    
    second petition and published notice of the hearing on July 14 and 21. On July 15,
    
    the Department contacted the Township regarding the second petition and objected
    
    to several of the proposed vacations. According to the Department, the highways at
    
    issue also led to the Lily GPA as well as to two U.S. Fish and Wildlife Service
    
    waterfowl production areas. A representative of the Department attended the
    
    July 22 hearing. The Township voted to vacate eight additional highway segments.
    
    [¶7.]        Valley Township approved one petition, which was submitted on
    
    July 21, 2014, to vacate ten highway segments within its jurisdiction. The
    
    Township scheduled a public hearing for August 5 to consider the petition and
    
    published notice on July 28 and August 4. The Department did not contact the
    
    Township regarding the petition, and the Township did not receive any objections to
    
    the petition. Neither the petitioners nor the Department attended the hearing.
    
    Valley Township approved all ten vacations proposed in the petition.
    
    
    
    
                                             -3-
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    [¶8.]          Butler Township approved one petition, which was submitted on
    
    July 29, 2014, to vacate 13 highway segments within its jurisdiction. The Township
    
    scheduled a public hearing for August 11 and published notice of the hearing on
    
    August 4 and 11. 2 The Department sent a letter to the Township on August 6,
    
    objecting to the entire petition. The Township also received a written objection from
    
    several local residents, who asked the Township to leave open highway segments
    
    they used to access their properties. The Township agreed and removed two
    
    proposed vacations from consideration. At the August 11 hearing, the Butler
    
    Township Board of Supervisors approved 10 of the 13 vacations proposed in the
    
    petition.
    
    [¶9.]          The Department appealed the Townships’ resolutions to the circuit
    
    court, arguing that vacating the highway segments did not better serve the public
    
    interest and that the Townships’ conclusions otherwise were arbitrary. The
    
    Department also claimed the Townships violated its right to due process in a
    
    number of ways. The court granted summary judgment in favor of the Department
    
    on two of Troy Township’s vacations because they involved a shared highway with a
    
    neighboring township that had not passed a corresponding resolution vacating the
    
    same highway segments. The court then conducted a de novo hearing on the
    
    Townships’ actions and affirmed the remaining vacations.
    
    [¶10.]         The Department appeals, raising five issues:
    
                   1.    Whether the Department had the burden of proof in its
                         appeal before the circuit court.
    
    
    2.       Butler Township asserts the paper in which notice was published was
             delivered to rural addresses on August 9.
    
                                              -4-
    #27981, #27982, #27986, #28008
    
                   2.    Whether vacating the highways will better serve the
                         public interest.
    
                   3.    Whether vacating the highways denied public access to a
                         public resource.
    
                   4.    Whether the Townships’ decisions to vacate segments of
                         the section-line highways were arbitrary.
    
                   5.    Whether the Townships denied the Department due
                         process.
    
                                     Analysis and Decision
    
    [¶11.]         1.    Whether the Department had the burden of proof in
                         its appeal before the circuit court.
    
    [¶12.]         The Department first argues that in its appeal to the circuit court, the
    
    court incorrectly imposed the burden of proof on the Department. SDCL 8-5-8
    
    permits an appeal to a circuit court “[f]rom all decisions, orders, and resolutions of
    
    the boards of supervisors of townships . . . by any person aggrieved thereby[.]”
    
    Under SDCL 8-5-10, such an appeal “shall be heard and determined de novo.” The
    
    term hearing de novo means “[a] new hearing of a matter, conducted as if the
    
    original hearing had not taken place.” Hearing, Black’s Law Dictionary (10th ed.
    
    2014). Because a township may vacate a highway only after it affirmatively
    
    determines that doing so will better serve the public interest, SDCL 31-3-6, the
    
    Department reasons that the Townships would have had the burden of proving the
    
    same before the circuit court.
    
    [¶13.]         The Department’s reasoning assumes that the Department had a right
    
    to appeal and that the applicable standard of review on appeal was de novo. 3 But
    
    
    
    3.       The Department offers no analysis on SDCL 8-5-8’s aggrieved-person
             requirement. However, neither do the Townships dispute the Department’s
                                                               (continued . . .)
                                              -5-
    #27981, #27982, #27986, #28008
    
    answering these questions is not as simple as noting that SDCL 8-5-10 prescribes
    
    de novo review. This Court, like its predecessor, has long recognized that the
    
    separation-of-powers doctrine precludes de novo review of administrative action
    
    that is not quasi-judicial. One line of cases involving administrative appeals
    
    preserves the separation of powers by restricting the right to appeal to quasi-
    
    judicial acts only. Another line recognizes a right to appeal non-quasi-judicial acts
    
    but employs only limited review on appeal. Since the 1970s, however, some of this
    
    Court’s decisions have blurred the distinction between quasi-judicial and non-quasi-
    
    judicial acts. Today we reassert the separation-of-powers doctrine. As explained
    
    more fully below, we hold that de novo review is not constitutionally permissible in
    
    this case and that the Department has the burden of proof.
    
    [¶14.]       It is axiomatic that statutory authorization cannot override
    
    constitutional limitations on judicial power. Under the separation-of-powers
    
    doctrine, a court may not “exercise or participate in the exercise of functions which
    
    are essentially legislative or administrative.” Fed. Radio Comm’n v. Gen. Elec. Co.,
    
    
    281 U.S. 464
    , 469, 
    50 S. Ct. 389
    , 390, 
    74 L. Ed. 969
     (1930); see also Dunker v. Brown
    
    Cty. Bd. of Educ., 
    80 S.D. 193
    , 203, 
    121 N.W.2d 10
    , 16-17 (1963); Codington Cty. v.
    
    Bd. of Comm’rs, 
    51 S.D. 131
    , 135-36, 
    212 N.W. 626
    , 627-28 (1927); Pierre Water-
    
    Works Co. v. Hughes Cty., 
    5 Dakota 145
    , 163-64, 
    37 N.W. 733
    , 740 (1888).
    
    Therefore, “executive or administrative duties of a nonjudicial nature may not be
    
    
    ________________________
    (. . . continued)
             asserted right to appeal. For purposes of this opinion, we assume without
             deciding that the Department is an aggrieved person within the meaning of
             SDCL 8-5-8.
    
                                              -6-
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    imposed on judges[,]” Buckley v. Valeo, 
    424 U.S. 1
    , 123, 
    96 S. Ct. 612
    , 684,
    
    
    46 L. Ed. 2d 659
     (1976) (per curiam), “either directly or by appeal[,]” Keller v.
    
    Potomac Elec. Power Co., 
    261 U.S. 428
    , 444, 
    43 S. Ct. 445
    , 449, 
    67 L. Ed. 731
     (1923).
    
    “The purpose of this limitation is to help ensure the independence of the Judicial
    
    Branch and to prevent the Judiciary from encroaching into areas reserved for the
    
    other branches.” Morrison v. Olson, 
    487 U.S. 654
    , 677-78, 
    108 S. Ct. 2597
    , 2612,
    
    
    101 L. Ed. 2d 569
     (1988).
    
    [¶15.]         Both this Court and its predecessor have applied the separation-of-
    
    powers doctrine in determining the level of judicial review permitted in an appeal of
    
    administrative action. The Supreme Court of Dakota Territory first addressed the
    
    issue in Pierre Water-Works Co. v. Hughes County, 
    5 Dakota 145
    , 
    37 N.W. 733
    
    (1888). In that case, the Hughes County Board of Commissioners increased the tax
    
    assessment of Pierre Water-Works’ property, and Pierre Water-Works appealed. Id.
    
    at 150-51, 37 N.W. at 733. Chapter 21, § 46, of Dakota Territory’s Political Code
    
    permitted an appeal by any person aggrieved by a “decision” of the board, and § 49
    
    prescribed a de novo hearing on appeal. Pierre Water-Works, 5 Dakota at 162,
    
    37 N.W. at 739. 4 Recognizing that “the great powers of the government—the
    
    legislative, executive, and judicial—[must] be separately exercised by the
    
    departments in which such power is expressly lodged,” the court noted:
    
                   The powers given to the board of county commissioners . . . are
                   very comprehensive; and include, not only those of an
                   administrative and executive character, but those of a legislative
                   and quasi judicial character as well. And it may well be
                   questioned whether the legislature, in giving an appeal from the
    
    
    4.       These territorial code provisions survive as SDCL 7-8-27 and -30.
    
                                               -7-
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                 decisions of the board, intended to make the court a board of
                 county commissioners, and on appeal to require it de novo to
                 hear and determine matters of a political and administrative
                 character, which appeal directly to the judgment and discretion
                 of the commissioners. Such is not the province of courts. . . .
                 “Hence we . . . suppose that appeals from the board of county
                 commissioners to the district court must be limited to such cases
                 as require the exercise of purely judicial power, and therefore
                 that, when the board of county commissioners exercises political
                 power or legislative power or administrative power or
                 discretionary power or purely ministerial power, no appeal will
                 lie.”
    
    Id. at 163-65, 37 N.W. at 739-40 (quoting Fulkerson v. Stevens, 
    1 P. 261
    , 263 (Kan.
    
    1883)). The court concluded that the issue was quasi-judicial and that the appeal
    
    was therefore constitutionally permissible. Id. at 166-67, 37 N.W. at 741; see also
    
    Champion v. Bd. of Cty. Comm’rs, 
    5 Dakota 416
    , 429-30, 
    41 N.W. 739
    , 742 (1889).
    
    [¶16.]       This Court adopted the same reasoning in Codington County v. Board
    
    of Commissioners, 
    51 S.D. 131
    , 
    212 N.W. 626
     (1927). In that case, Codington
    
    County attempted to appeal its board of commissioners’ selection of a particular
    
    architect to design and build a courthouse. Id. at 132, 212 N.W. at 626. As in Pierre
    
    Water-Works Co., we said:
    
                 If the action appealed from is quasi judicial, then the court on
                 appeal can do what it finds the board should have done, but, if
                 the action appealed from is not quasi judicial, then the court,
                 upon appeal, cannot substitute its judgment for that of the
                 board. If the Legislature had expressly provided that upon
                 appeal in this proceeding the court might have determined the
                 architect to be selected, such a provision by the Legislature
                 would have invaded the constitutional division of the
                 departments of government.
    
    Codington Cty., 51 S.D. at 135-36, 212 N.W. at 627-28. We determined that “[t]he
    
    selection of an architect to plan and supervise the construction of a public building
    
    is not the exercise of quasi judicial power[.]” Id. at 134, 212 N.W. at 627. Thus,
    
                                              -8-
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    applying the separation-of-powers doctrine, we held there was no right to appeal
    
    because de novo review of non-quasi-judicial administrative action was not
    
    constitutionally permissible.
    
    [¶17.]         We took a different approach to maintaining the separation of powers
    
    in Dunker v. Brown County Board of Education, 
    80 S.D. 193
    , 
    121 N.W.2d 10
     (1963).
    
    In Dunker, Brown County’s board of education approved a proposed school district,
    
    and several individuals appealed to the circuit court, seeking de novo review under
    
    the predecessor to SDCL chapter 13-46. Dunker, 80 S.D. at 196, 203, 121 N.W.2d
    
    at 12-13, 17. 5 Applying the separation-of-powers analysis of the county-commission
    
    cases, we addressed the nature of the school board’s action. We held that because
    
    “[t]he creation, enlargement, consolidation[,] or dissolution of school districts is a
    
    legislative function[,]”—rather than a quasi-judicial function—interference by a
    
    court “would be a violation of the separation of powers provision of [Article] II of our
    
    State Constitution.” Id. at 203, 121 N.W.2d at 16 (emphasis added) (citing
    
    Champion, 
    5 Dakota 416
    , 
    41 N.W. 739
    ). Because this “constitutional separation of
    
    powers cannot be done away with by legislative action[,]” we concluded that
    
    statutes prescribing de novo review of administrative action “must be applied in the
    
    light of this constitutional limitation.” Id. at 203-04, 121 N.W.2d at 17. Unlike
    
    Codington County, however, we did not simply hold there was no right to appeal.
    
    Instead, we held that when the administrative action at issue is not quasi-judicial,
    
    appellate review is limited to determining whether the administrative board “has
    
    
    5.       SDCL 13-46-1 permits an appeal “[f]rom a decision made by any school
             board[.]” SDCL 13-46-6 requires “[t]he trial in the circuit court shall be
             de novo[.]”
    
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    acted unreasonably, arbitrarily, or has manifestly abused its discretion[.]” Dunker,
    
    80 S.D. at 203, 121 N.W.2d at 17. 6
    
    [¶18.]         Subsequently, some opinions departed from Dunker and Codington
    
    County’s understanding of the separation-of-powers doctrine. Mortweet v. Ethan
    
    Board of Education, 
    90 S.D. 368
    , 
    241 N.W.2d 580
     (1976), explicitly rejected the
    
    notion that there is any material distinction between quasi-judicial and non-quasi-
    
    judicial administrative action. In that case, an administrative board decided not to
    
    renew Mortweet’s teaching contract. Id. at 369, 241 N.W.2d at 580. She appealed,
    
    arguing that the board’s action was quasi-judicial, that she was entitled to a de novo
    
    hearing under SDCL 13-46-6, and that the board therefore had the burden of proof
    
    in justifying its failure to renew her contract. Mortweet, 90 S.D. at 371, 241 N.W.2d
    
    at 581. The Court rejected Mortweet’s arguments. In the Court’s view, the
    
    separation-of-powers doctrine precluded a de novo hearing on appeal whenever “an
    
    administrative board . . . is legitimately exercising administrative power.” Id.
    
    at 372-73, 241 N.W.2d at 582. The Court was “unpersuaded” that a de novo hearing
    
    was ever appropriate—even if the action appealed is quasi-judicial. See id.
    
    [¶19.]         Other appeals involving different administrative boards have also
    
    presented similar analytical problems. In some cases, we have held that when a
    
    circuit court hears an appeal regarding administrative action, “[t]he powers of the
    
    
    
    6.       If the Court had strictly applied the Codington County line of authority,
             Dunker could have simply been dismissed on the basis that there was no
             right to appeal. The Dunker opinion does not reveal the reason for adopting
             this alternative approach. Regardless, Dunker and Codington County equally
             preserve the separation of powers by preventing de novo review of non-quasi-
             judicial administrative action.
    
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    circuit court are the same as those of the [administrative] board. The court
    
    exercises independent judgment . . . . In effect, it sits as another board . . . .” Chi. &
    
    Nw. Ry. Co. v. Schmidt, 
    85 S.D. 223
    , 227, 
    180 N.W.2d 233
    , 235 (1970). Seemingly to
    
    the contrary, we have also said that in such an appeal, the circuit court should not
    
    sit as a one-person administrative board. In re Conditional Use Permit Denied to
    
    Meier, 
    2000 S.D. 80
    , ¶ 22, 
    613 N.W.2d 523
    , 530. And the standard of review stated
    
    in Goos RV Center v. Minnehaha County Commission, 
    2009 S.D. 24
    , 
    764 N.W.2d 704
    , is internally inconsistent. In stating the standard of review, the Court first
    
    said that a de novo hearing means “the [circuit] court should determine the issues
    
    before it on appeal as if they had been brought originally. The court must review
    
    the evidence, make findings of fact and conclusions of law, and render judgment
    
    independent of the agency proceedings.” Id. ¶ 8, 764 N.W.2d at 707 (emphasis
    
    added) (quoting Conditional Use Permit Denied to Meier, 
    2000 S.D. 80
    , ¶ 21,
    
    613 N.W.2d at 530). However, the paragraph then concludes by stating the circuit
    
    court may reverse only if the administrative board’s decision is arbitrary. Id. These
    
    two statements cannot be reconciled.
    
    [¶20.]       The foregoing illustrates the difficulty in interpreting statutes that
    
    mandate de novo review even when such review is not permissible. Resolving this
    
    problem, as well as the present case, requires a rejection of cases that fail to
    
    distinguish between quasi-judicial and non-quasi-judicial administrative action.
    
    The authorities cited above establish that under the separation-of-powers doctrine,
    
    the judicial branch may not wield legislative or executive power. Supra ¶ 14.
    
    Therefore, regardless of statutory authorization to the contrary, a court may not
    
    
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    substitute its judgment for that of an administrative board on issues that are not
    
    quasi-judicial. See Morrison, 487 U.S. at 677-78, 108 S. Ct. at 2612. 7 However,
    
    neither should a court abdicate its judicial power to the legislative or executive
    
    branches of government, see id.; if the action appealed is quasi-judicial, then the
    
    separation-of-powers doctrine is not offended by a de novo hearing on appeal, and
    
    statutes prescribing such review must be followed. Dunker, 80 S.D. at 203-04,
    
    121 N.W.2d at 17.
    
    [¶21.]         The question in this case, then, is whether the action appealed is
    
    quasi-judicial. Administrative action is quasi-judicial if it “investigates, declares,
    
    and enforces liabilities as they stand on present or past facts and under laws
    
    supposed already to exist” rather than “look[ing] to the future and chang[ing]
    
    existing conditions by making a new rule, to be applied thereafter to all or some
    
    part of those subject to its power.” Prentis v. Atl. Coast Line Co., 
    211 U.S. 210
    , 226,
    
    
    29 S. Ct. 67
    , 69, 53 L. Ed 150 (1908); accord In re Conditional Use Permit No. 13-08,
    
    
    2014 S.D. 75
    , ¶ 19, 
    855 N.W.2d 836
    , 842; see also Champion, 5 Dakota at 430,
    
    
    
    7.       The courts of a number of other states employ the same reasoning in limiting
             their states’ statutes prescribing de novo hearings for appeals of
             administrative action. See Ball v. Jones, 
    132 So. 2d 120
    , 123-24 (Ala. 1961);
             Tomerlin v. Nickolich, 
    27 S.W.3d 746
    , 749-50 (Ark. 2000); Bixby v. Pierno,
             
    481 P.2d 242
    , 251 (Cal. 1971) (en banc); Walgreen Co. v. Charnes, 
    819 P.2d 1039
    , 1047 (Colo. 1991) (en banc); Bentley v. Chastain, 
    249 S.E.2d 38
    , 40-41
             (Ga. 1978); People ex rel. Devine v. Murphy, 
    693 N.E.2d 349
    , 353-54 (Ill.
             1998); Frick v. City of Salina, 
    208 P.3d 739
    , 748-49 (Kan. 2009); Crouch v.
             Jefferson Cty., Ky. Police Merit Bd., 
    773 S.W.2d 461
    , 462-63 (Ky. 1988); Dep’t
             of Nat. Res. v. Linchester Sand & Gravel Corp., 
    334 A.2d 514
    , 522-23 (Md.
             1975); Langvardt v. Horton, 
    581 N.W.2d 60
    , 68-69 (Neb. 1998); Shaw v.
             Burleigh Cty., 
    286 N.W.2d 792
    , 797 (N.D. 1979); Weeks v. Personnel Bd. of
             Review, 
    373 A.2d 176
    , 177-78 (R.I. 1977); Quick v. City of Austin, 
    7 S.W.3d 109
    , 114-15 (Tex. 1998).
    
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    #27981, #27982, #27986, #28008
    
    41 N.W. at 742 (“[T]he test is, [does the administrative act] in a legal sense tend to
    
    ‘deprive of life, liberty, or property?’”). Thus, as our earliest decisions indicate,
    
    quasi-judicial acts are those that could have been “determined as an original action
    
    in the [circuit] court[.]” Champion, 5 Dakota at 430, 41 N.W. at 742. 8 Or as one
    
    commentator has remarked: “Perhaps as good a criterion as any for determining
    
    what is judicial is merely to compare the action in question with the ordinary
    
    business of courts: that which resembles what courts customarily do is judicial, and
    
    that which has no such resemblance is nonjudicial.” Francisco v. Bd. of Dirs. of
    
    Bellevue Pub. Sch., Dist. No. 405, 
    537 P.2d 789
    , 792 (Wash. 1975) (en banc) (quoting
    
    3 Kenneth C. Davis, Administrative Law Treatise § 24.02).
    
    [¶22.]         Based on the foregoing, a township’s vacation of a highway is not a
    
    quasi-judicial act. The question decided by the Townships in this case was whether
    
    the public interest would be better served by vacating the highway segments. The
    
    Townships did not adjudicate existing rights of specific individuals. See Prentis,
    
    211 U.S. at 226, 29 S. Ct. at 69; Conditional Use Permit No. 13-08, 
    2014 S.D. 75
    ,
    
    ¶ 19, 855 N.W.2d at 842; Champion, 5 Dakota at 430, 41 N.W. at 742. And when an
    
    administrative board “decides to abandon a road or street because it has ceased to
    
    be useful to the public, it is acting prospectively[.]” Gardner v. Cumberland Town
    
    Council, 
    826 A.2d 972
    , 976 (R.I. 2003). Thus, the circuit court could not have been
    
    asked in the first instance to determine whether the highway segments at issue
    
    should be vacated—such a question is “one of policy.” Rolf v. Town of Hancock,
    
    
    8.       For example, a drainage complaint filed with a county board against a
             neighboring landowner could instead be filed as a tort action seeking an
             injunction in circuit court.
    
                                               -13-
    #27981, #27982, #27986, #28008
    
    
    208 N.W. 757
    , 758 (Minn. 1926). Therefore, as numerous other courts have held, we
    
    conclude that the administrative act of vacating a highway is not quasi-judicial. See
    
    Ala. Great S. R.R. Co. v. Denton, 
    195 So. 218
    , 221 (Ala. 1940); Beals v. City of L.A.,
    
    
    144 P.2d 839
    , 842 (Cal. 1943); Rolf, 208 N.W. at 758; Phillips Mercantile Co. v. City
    
    of Albuquerque, 
    287 P.2d 77
    , 85 (N.M. 1955), overruled on other grounds by Wheeler
    
    v. Monroe, 
    523 P.2d 540
     (N.M. 1974); Gardner, 826 A.2d at 976; Sweetwater Valley
    
    Mem’l Park, Inc. v. City of Sweetwater, 
    372 S.W.2d 168
    , 169 (Tenn. 1963); Am. Oil
    
    Co. v. Leaman, 
    101 S.E.2d 540
    , 550 (Va. 1958); Thomas v. Jultak, 
    231 P.2d 974
    , 979
    
    (Wyo. 1951); 39 Am. Jur. 2d Highways, Streets, & Bridges § 171, Westlaw (database
    
    updated August 2017); 39A C.J.S. Highways § 189, Westlaw (database updated
    
    June 2017).
    
    [¶23.]        Because the administrative acts in question are not quasi-judicial,
    
    de novo judicial review would violate the separation of powers. As explained above,
    
    our cases present two options for resolving the appeal of non-quasi-judicial
    
    administrative action. Under Codington County, we could simply deny a right to
    
    appeal altogether. 51 S.D. at 133, 212 N.W. at 626-27. Under Dunker, we could
    
    hear the appeal but restrict review to a more deferential standard. 80 S.D. at 203,
    
    121 N.W.2d at 16. While both approaches preserve the separation of powers by
    
    preventing de novo review of non-quasi-judicial administrative action, we think
    
    Dunker is the better approach. In passing statutes like SDCL 7-8-27 and -30,
    
    SDCL 8-5-8 and -10, and SDCL 13-46-1 and -6, the Legislature clearly intended to
    
    give aggrieved persons an avenue for challenging the actions of local governing
    
    bodies. These statutes do not distinguish between quasi-judicial and non-quasi-
    
    
                                              -14-
    #27981, #27982, #27986, #28008
    
    judicial administrative action. It would seem, then, the Legislature intended to
    
    create a right to appeal regardless of whether the aggrieving conduct is quasi-
    
    judicial. Therefore, even if non-quasi-judicial administrative action cannot be
    
    reviewed de novo, reviewing such action under a more deferential standard of
    
    review equally preserves the separation of powers while conforming to the
    
    Legislature’s intent to the maximum extent possible.
    
    [¶24.]       In summary, when presented with an appeal of administrative action
    
    under a statute prescribing de novo review, a circuit court must determine whether
    
    the action appealed is quasi-judicial. De novo review is only appropriate if the
    
    administrative action is quasi-judicial. Here, the administrative action before the
    
    circuit court was not quasi-judicial. Therefore, the circuit court was not permitted
    
    to determine whether the Townships correctly concluded the public interest will be
    
    better served by vacating the highways. Instead, the question before the circuit
    
    court was whether the Townships “acted unreasonably, arbitrarily, or . . .
    
    manifestly abused [their] discretion[.]” Dunker, 80 S.D. at 203, 121 N.W.2d at 17.
    
    As the party asserting that claim, the Department has the burden of proof. See Pac.
    
    States Box & Basket Co. v. White, 
    296 U.S. 176
    , 185, 
    56 S. Ct. 159
    , 163, 
    80 L. Ed. 138
     (1935); Coyote Flats, LLC v. Sanborn Cty. Comm’n, 
    1999 S.D. 87
    , ¶ 8,
    
    
    596 N.W.2d 347
    , 349-50. The Department also has the burden of proof in regard to
    
    its additional due-process claim. Therefore, the circuit court did not err in imposing
    
    the burden of proof on the Department.
    
    
    
    
                                             -15-
    #27981, #27982, #27986, #28008
    
    [¶25.]       2.     Whether vacating the highways will better serve the
                        public interest.
    
    [¶26.]       Next, the Department argues the circuit court erred by concluding that
    
    vacating the highway segments will better serve the public interest. As discussed
    
    above, however, this question is one of policy and, therefore, not quasi-judicial.
    
    Supra ¶¶ 22-23.
    
                 This is a practical legislative determination which has been
                 entrusted to the discretion of the Board, not to the courts. The
                 wisdom of its decision is not our concern, since we are not at
                 liberty to substitute our judgment for that of the [township]
                 board on a matter inherently legislative. If the rule were
                 otherwise[,] the circuit courts would become [administrative]
                 boards . . . deciding matters that are nonjudicial.
    
    Dunker, 80 S.D. at 203, 121 N.W.2d at 16 (emphasis added). Therefore, we will not
    
    examine whether the Townships were correct in determining that the public
    
    interest will be better served by vacating the highways.
    
    [¶27.]       3.     Whether vacating the highways denied public access
                        to a public resource.
    
    [¶28.]       Next, the Department argues the circuit court erred by concluding the
    
    Townships did not eliminate public access to a public resource. Even if we assume
    
    without deciding that the circuit court’s factual findings on this point are clearly
    
    erroneous, the Department has not explained the relevance of its argument. In its
    
    briefs, the Department seems to suggest that a township may not vacate a highway
    
    that provides access to a public resource. As explained above, however, the
    
    Legislature empowered the townships of this State with the ability to vacate
    
    highways within their jurisdictions “if the public interest will be better served by
    
    the proposed vacating . . . of the highway.” SDCL 31-3-6. Neither this statute nor
    
    any other the Department has cited indicates that a township’s power to vacate a
                                              -16-
    #27981, #27982, #27986, #28008
    
    highway is further restrained when the highway at issue provides access to a public
    
    resource.
    
    [¶29.]         Even if the Department had explained the relevance of this argument,
    
    it is not persuasive. If the Legislature had meant SDCL 31-3-6 to forbid a vacation
    
    that would limit access to a public resource, it could have easily said so. For
    
    example, the Legislature has done just that in regard to public lands. SDCL 31-3-
    
    6.1 (“Notwithstanding any other provisions of [SDCL] chapter [31-3], no county or
    
    township may vacate a highway which provides access to public lands.”); see also
    
    SDCL 31-18-3 (same). We are unable to locate a corresponding statute proscribing
    
    the vacation of a highway that provides access to public waters sitting atop private
    
    lands. 9 If we read such a requirement into SDCL 31-3-6, SDCL 31-3-6.1 would
    
    serve no purpose. Because “[w]e assume that the Legislature intended that no part
    
    of its statutory scheme be rendered mere surplusage[,]” Pitt-Hart v. Sanford USD
    
    Med. Ctr., 
    2016 S.D. 33
    , ¶ 13, 
    878 N.W.2d 406
    , 411 (quoting Peters v. Great W.
    
    Bank, Inc., 
    2015 S.D. 4
    , ¶ 8, 
    859 N.W.2d 618
    , 622), such a reading is contrary to our
    
    well-established rules of statutory construction.
    
    [¶30.]         Moreover, the Department’s view would essentially negate the
    
    discretionary power set out in SDCL 31-3-6. The word resource means “[a] useful or
    
    valuable quality or possession of a country, state, organization, or person.” Black’s
    
    
    
    9.       In fact, during the 2014 legislative session, the South Dakota Senate
             considered Senate Bill 169, which proposed amending SDCL 31-3-6.1 to read:
             “Notwithstanding any other provisions of this chapter, no county or township
             may vacate a highway which provides access to public lands or waters open to
             the public for recreational use.” (Emphasis added.) The Senate tabled the
             bill. S. Journal, 89th Leg., 1st Sess. 351 (S.D. 2014).
    
                                              -17-
    #27981, #27982, #27986, #28008
    
    Law Dictionary (10th ed. 2014). Under this definition, a highway itself is a public
    
    resource. Vacating a highway necessarily prevents the public from accessing that
    
    highway. Therefore, under the Department’s view, a Township would never be
    
    permitted to vacate a township highway as doing so would deny the public access to
    
    a public resource. This view reads all meaning out of SDCL 31-3-6.
    
    [¶31.]         We think the better view of SDCL 31-3-6 is that it gives a township
    
    discretion to weigh competing public interests and determine which is more
    
    important to that particular community. 10 At times, this process will necessarily
    
    involve subordinating one public interest for another. Therefore, whether the
    
    vacations at issue in this case actually cut off access to a public resource is not
    
    dispositive. Under SDCL 31-3-6, the question is whether the public harm of cutting
    
    off such access (assuming that is the case) is outweighed by the public benefit in
    
    vacating the highway at issue. As previously discussed, however, this balancing of
    
    competing public interests is a policy question and, therefore, not one properly
    
    answered by the courts.
    
    [¶32.]         4.    Whether the Townships’ decisions to vacate
                         segments of the section-line highways were
                         arbitrary.
    
    [¶33.]         Next, the Department argues the Townships’ decisions to vacate the
    
    highways were arbitrary. 11 The arbitrariness standard of review is narrow, and
    
    
    
    10.      During oral argument, the Department agreed with this view.
    
    11.      As noted above, the question on appeal was whether the Townships “acted
             unreasonably, arbitrarily, or . . . manifestly abused [their] discretion[.]”
             Dunker, 80 S.D. at 203, 121 N.W.2d at 17. This phrase refers to multiple
             standards of review that are applicable in different contexts. Reasonableness
                                                                   (continued . . .)
                                                  -18-
    #27981, #27982, #27986, #28008
    
    under that standard, “a court is not to substitute its judgment for that of the
    
    agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
    
    
    463 U.S. 29
    , 43, 
    103 S. Ct. 2856
    , 2866, 
    77 L. Ed. 2d 443
     (1983). An administrative
    
    board “must examine the relevant data and articulate a satisfactory explanation for
    
    its action including a ‘rational connection between the facts found and the choice
    
    made.’” Id. (quoting Burlington Truck Lines, Inc. v. United States, 
    371 U.S. 156
    ,
    
    168, 
    83 S. Ct. 239
    , 245-46, 
    9 L. Ed. 2d 207
     (1962)). An administrative board’s
    
    decision
    
                 would be arbitrary . . . if the [board] has relied on factors which
                 [the Legislature] has not intended it to consider, entirely failed
                 to consider an important aspect of the problem, offered an
                 explanation for its decision that runs counter to the evidence
                 before the [board], or is so implausible that it could not be
                 ascribed to a difference in view or the product of . . . expertise.
    
    
    
    
    ________________________
    (. . . continued)
             review is another term for substantial-evidence review. 33 Charles H. Koch,
             Jr., Federal Practice & Procedure: Judicial Review of Administrative Action
             § 8333 (1st ed.), Westlaw (database updated April 2017). Traditionally,
             “[r]easonableness review is appropriate . . . when the decision was made
             through a formal, trial-like proceeding . . . . The dominant issues in such
             proceedings tend to be specific or adjudicative facts . . . .” Id. (emphasis
             added). In contrast, “[a]rbitrariness review generally applies to the results of
             an informal process.” Id. § 8334 (emphasis added). This standard was
             “[d]eveloped and codified as a review for factfindings and policy choices
             (reasoning processes) made in an informal setting.” Steven A. Childress &
             Martha S. Davis, Federal Standards of Review § 15.07 (2d. ed. 1992). And
             not surprisingly, the abuse-of-discretion standard applies to an
             administrative body’s acts of reviewable discretion. 33 Koch, supra, § 8336.
          The administrative proceedings at issue here were informal and not like a
          trial, producing little in the way of a reviewable record. Moreover, the issue
          appealed is best described as a mix of policy and fact (weighing the competing
          public interests involved). Therefore, the arbitrariness standard of review is
          appropriate.
    
                                              -19-
    #27981, #27982, #27986, #28008
    
    Id. at 43, 103 S. Ct. at 2867; accord Coyote Flats, LLC, 
    1999 S.D. 87
    , ¶ 14,
    
    596 N.W.2d at 351 (holding action arbitrary if “based on personal, selfish, or
    
    fraudulent motives” (quoting Tri Cty. Landfill Ass’n, Inc. v. Brule Cty., 
    535 N.W.2d 760
    , 764 (S.D. 1995)). In other words, “[a] decision is arbitrary . . . when it is ‘not
    
    governed by any fixed rules or standard.’” Kirby v. Hoven Sch. Dist. No. 53-2,
    
    
    2004 S.D. 100
    , ¶ 5, 
    686 N.W.2d 905
    , 906 (quoting Johnson v. Lennox Sch. Dist.
    
    No. 41-4, 
    2002 S.D. 89
    , ¶ 8, 
    649 N.W.2d 617
    , 621).
    
    [¶34.]         A township’s power to vacate a highway located within the township is
    
    subject to few restrictions. Most notably—and the only restriction at issue in the
    
    present case—a township may vacate a highway only if the township first
    
    determines that “the public interest will be better served by the proposed vacating,
    
    changing, or locating of the highway.” SDCL 31-3-6. Each resolution and order to
    
    vacate indicates that its respective township made such a determination in
    
    approving the petitions. Likewise, the circuit court found that each of the
    
    Townships “reviewed the condition of the highways within its borders and identified
    
    those that no longer served the public interest in expending Township resources to
    
    improve or maintain.” 12
    
    [¶35.]         Even so, the Department contends each of the Townships’ decisions
    
    was based on “personal, selfish, fraudulent motives, false information, or a lack of
    
    relevant and competent evidence.” Again, the circuit court explicitly found to the
    
    contrary:
    
    
    12.      This language is taken from the court’s findings of fact in the Troy Township
             case. With minor variations, the same language appears in the Valley and
             Butler Township findings of fact.
    
                                               -20-
    #27981, #27982, #27986, #28008
    
                   The board of supervisors [of Troy Township] did not exercise
                   personal and selfish motives in reaching the decision to adopt
                   the two resolutions to vacate.
                   Township’s board of supervisors did not use fraudulent or false
                   motives when it reached its decision to vacate the highways
                   listed in the two petitions. Instead, Township’s board inspected
                   the township highways, made a determination on which
                   highways no longer needed to be a part of Township’s highway
                   system, and moved forward by taking the appropriate action to
                   vacate the selected highways. . . .
    
                   Township had relevant and competent information to make its
                   decision in adopting the two resolutions.[ 13]
    
    The court made the same findings regarding Valley and Butler Townships.
    
    [¶36.]         In light of the circuit court’s findings, the Department’s argument on
    
    this issue is entirely a factual matter. A circuit court’s “factual findings will not be
    
    disturbed unless they are clearly erroneous.” Aguilar v. Aguilar, 
    2016 S.D. 20
    , ¶ 9,
    
    
    877 N.W.2d 333
    , 336.
    
                   The question is not whether this Court would have made the
                   same findings that the trial court did, but whether on the entire
                   evidence we are left with a definite and firm conviction that a
                   mistake has been committed. This Court is not free to disturb
                   the lower court’s findings unless it is satisfied that they are
                   contrary to a clear preponderance of the evidence. Doubts about
                   whether the evidence supports the court’s finding of fact are to
                   be resolved in favor of the successful party’s version of the
                   evidence and of all inferences fairly deducible therefrom which
                   are favorable to the court’s action.
    
    Gartner v. Temple, 
    2014 S.D. 74
    , ¶ 8, 
    855 N.W.2d 846
    , 850 (quoting Estate of Olson,
    
    
    2008 S.D. 97
    , ¶ 9, 
    757 N.W.2d 219
    , 222). Furthermore, we “give due regard to the
    
    opportunity of the circuit court to judge the credibility of witnesses and to weigh
    
    
    
    
    13.      The circuit court mistakenly labeled these factual matters as conclusions of
             law.
    
                                               -21-
    #27981, #27982, #27986, #28008
    
    their testimony properly.” Aguilar, 
    2016 S.D. 20
    , ¶ 9, 877 N.W.2d at 336 (quoting
    
    In re Guardianship of S.M.N., 
    2010 S.D. 31
    , ¶ 11, 
    781 N.W.2d 213
    , 218).
    
    [¶37.]       The Department raises a number of points. In regard to all three
    
    Townships, the Department contends: (1) many of the Townships’ board members
    
    personally benefitted—or were related to individuals who benefitted—from the
    
    vacations; (2) the Townships’ concern about their potential liability was unfounded;
    
    (3) the Townships acted without any relevant or competent information; and (4) the
    
    Townships predetermined the outcome of their respective hearings by drafting the
    
    petitions. Additionally, the Department contends that statements of Troy
    
    Township’s Chairman Duerre prove that it considered inappropriate factors.
    
    [¶38.]       The Department first contends that many of the Townships’ board
    
    members personally or indirectly benefitted from the highway vacations. In the
    
    Department’s view, a landowner benefits when the public is unable to access the
    
    landowner’s property. Because a number of the Townships’ board members own
    
    land adjoining the vacated highways, the Department concludes the Townships
    
    must have been motivated by such alleged benefit. In essence, the Department
    
    suggests that we may simply infer the Townships acted on an improper purpose.
    
    On the contrary, however, “[a]dministrative officials are presumed to be objective
    
    and capable of judging controversies fairly on the basis of their own circumstances.”
    
    Nw. Bell Tel. Co. v. Stofferahn, 
    461 N.W.2d 129
    , 133 (S.D. 1990) (citing United
    
    States v. Morgan, 
    313 U.S. 409
    , 421, 
    61 S. Ct. 999
    , 1004, 
    85 L. Ed. 1429
     (1941)).
    
    Even if we accept the Department’s assertion that some benefit inured to the
    
    Townships’ board members by virtue of the highway vacations, the fact that such
    
    
                                             -22-
    #27981, #27982, #27986, #28008
    
    occurred does not prove the Townships approved the petitions for the purpose of
    
    obtaining those benefits.
    
    [¶39.]         Next, the Department contends the Townships’ concern regarding their
    
    potential liability is legally unfounded. As the circuit court found, the Townships
    
    expressed a concern that many of the section-line highways were dangerous or
    
    impassable. The court found that the Townships decided the safety of the traveling
    
    public and the interest of the Townships in avoiding liability for injuries to the
    
    traveling public justified vacating the highways. On appeal, the Department
    
    contends the Townships would be shielded from liability by sovereign immunity.
    
    Even assuming the Department’s view of sovereign immunity is correct, the
    
    Townships would only be protected from liability—not from the time and expense of
    
    defending themselves in court. Moreover, the Department’s sovereign-immunity
    
    argument ignores the Townships’ stated concerns for public safety.
    
    [¶40.]         The Department also contends the Townships acted without any
    
    relevant or competent information. The Department devotes only two sentences to
    
    this argument in its brief:
    
                   A lack of relevant or competent information is evidenced by Troy
                   Township’s failure to provide a transcript of the hearing, failure
                   to provide a defensible reason why vacating the public highways
                   better serves the public interest, and its failure to analyze public
                   interest. In fact, the testimony indicates otherwise.[ 14]
    
    The Department does not actually cite or quote any relevant testimony. These
    
    conclusory claims amount to little more than another invitation to infer wrongdoing.
    
    
    
    14.      The Department’s commentary on this point regarding Valley and Butler
             Townships is equally terse.
    
                                               -23-
    #27981, #27982, #27986, #28008
    
    Moreover, the Department’s argument overlooks the fact that the Townships’ board
    
    members are necessarily residents of their respective townships; have first-hand
    
    knowledge of the highways and conditions at issue; and as the Department itself
    
    points out, are fully aware of the competing interests.
    
    [¶41.]         After reviewing the Department’s arguments, we are not definitely and
    
    firmly convinced the circuit court’s findings regarding Valley and Butler Townships
    
    are erroneous. See Aguilar, 
    2016 S.D. 20
    , ¶ 9, 877 N.W.2d at 336. Consequently,
    
    we will not disturb the court’s findings. The court’s findings establish those
    
    Townships “examine[d] the relevant data and articulate[d] a satisfactory
    
    explanation for [their] action[s.]” Motor Vehicle Mfrs. Ass’n of U.S., 463 U.S. at 43,
    
    103 S. Ct. at 2866 (quoting Burlington Truck Lines, 371 U.S. at 168, 83 S. Ct.
    
    at 245-46). Therefore, we agree with the circuit court that those Townships did not
    
    act arbitrarily in approving the petitions.
    
    [¶42.]         However, statements made by Chairman Duerre indicate Troy
    
    Township considered factors the Legislature did not intend it to consider in deciding
    
    whether to vacate a highway. Two witnesses testified before the circuit court
    
    regarding comments made by Chairman Duerre following the July 22 vote
    
    approving the petition. According to those witnesses, Chairman Duerre said:
    
    “[T]his is our land, these are our roads, this is our water and these are our fish and
    
    you’re not gonna have access to them.” 15 Contemporaneous with these statements,
    
    two-thirds of Troy Township’s board members were contemplating litigation to
    
    
    
    15.      When asked on cross-examination whether he made these statements,
             Chairman Duerre admitted it was “[v]ery possible.”
    
                                             -24-
    #27981, #27982, #27986, #28008
    
    accomplish the very same. Only two weeks after the July 22 vote, Chairman
    
    Duerre, Supervisor Herr, and others filed a complaint against the State, the
    
    Department (and its Secretary), and “certain unnamed defendants for declaratory
    
    and injunctive relief concerning the public’s right to use the waters and ice
    
    overlying the landowners’ private property for recreational purposes.” Duerre,
    
    
    2017 S.D. 8
    , ¶ 1, 892 N.W.2d at 213. 16 Read in context, then, Chairman Duerre’s
    
    statements strongly indicate that Troy Township’s decision to approve the petitions
    
    was based not on a determination that vacating the highway segments would better
    
    serve the public interest but rather on a determination that doing so would better
    
    prevent public access. Because “the [township] has relied on factors which [the
    
    Legislature] has not intended it to consider,” Troy Township’s resolutions and
    
    orders were arbitrary. Motor Vehicle Mfrs. Ass’n of U.S., 463 U.S. at 43, 103 S. Ct.
    
    at 2867.
    
    [¶43.]         5.     Whether the Townships denied the Department due
                          process.
    
    [¶44.]         Finally, the Department argues “[t]he requirements of due process
    
    apply to adversarial administrative proceedings” and that it was entitled to a “fair
    
    and impartial hearing[.]” According to the Department, the Townships were biased
    
    and their hearings failed to conform to a number of statutory requirements. As
    
    noted in the previous section, the Department contends the Townships
    
    predetermined the outcome of their respective hearings. The Department claims
    
    
    
    16.      The unnamed defendants were identified as those “who have used or intend
             to use the floodwaters located on [Duerre or Herr] property for recreational
             purposes.” Duerre, 
    2017 S.D. 8
    , ¶ 1, 892 N.W.2d at 213.
    
                                              -25-
    #27981, #27982, #27986, #28008
    
    the Townships violated SDCL 8-3-4 by failing to properly publish notice of special
    
    meetings. It also claims the Townships violated a number of additional statutes.
    
    Therefore, according to the Department, it is entitled to another hearing.
    
    [¶45.]         The Fourteenth Amendment to the United States Constitution states
    
    that no “State shall deprive any person of life, liberty, or property, without due
    
    process of law[.]” 17 When administrative action does not adjudicate the life, liberty,
    
    or property of specific individuals, it is not quasi-judicial, and therefore,
    
    “constitutional due process requirements do not apply[.]” Kraft v. Meade Cty. ex rel.
    
    Bd. of Cty. Comm’rs, 
    2006 S.D. 113
    , ¶ 5, 
    726 N.W.2d 237
    , 240; accord Dunker,
    
    80 S.D. at 197, 121 N.W.2d at 13 (holding exercise of delegated legislative authority
    
    by administrative board is “not subject to the due process clause”); 75 Acres, LLC v.
    
    Miami-Dade Cty., 
    338 F.3d 1288
    , 1294 (11th Cir. 2003); see also Champion,
    
    5 Dakota at 430, 41 N.W. at 742 (holding due process applies when administrative
    
    action deprives a person of life, liberty, or property). Thus, “consideration of what
    
    procedures due process may require under any given set of circumstances must
    
    begin with a determination of the precise nature of the government function
    
    
    
    17.      The Department does not address the preliminary question whether it
             qualifies as a “person” within the meaning of the U.S. and South Dakota
             Constitutions, nor does it offer any authority suggesting that a state agency
             is entitled to Fourteenth Amendment protections against a political
             subdivision of the same state. “A political subdivision of a state cannot
             invoke the protection of the fourteenth amendment against the state.” Delta
             Special Sch. Dist. No. 5 v. State Bd. of Educ., 
    745 F.2d 532
    , 533 (8th Cir.
             1984) (citing City of Trenton v. New Jersey, 
    262 U.S. 182
    , 
    43 S. Ct. 534
    , 67 L.
             Ed. 937 (1923)). “For the same reasons, a political subdivision of a state
             cannot challenge the constitutionality of another political subdivision’s
             ordinance on due process and equal protection grounds.” S. Macomb Disposal
             Auth. v. Washington Twp., 
    790 F.2d 500
    , 505 (6th Cir. 1986).
    
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    #27981, #27982, #27986, #28008
    
    involved as well as of the private interest that has been affected by government
    
    action.” Kraft, 
    2006 S.D. 113
    , ¶ 5, 726 N.W.2d at 240-41 (quoting In re S.D. Water
    
    Mgmt. Bd. Approving Water Permit No. 1791-2, 
    351 N.W.2d 119
    , 123 (S.D. 1984)).
    
    As previously discussed, the act of vacating a highway is not quasi-judicial.
    
    Therefore, the administrative action complained of in this case “is not subject to the
    
    requirements of [the] due process [clauses]”—even if it resulted in some “injurious
    
    consequences.” Kraft, 
    2006 S.D. 113
    , ¶ 7, 726 N.W.2d at 241 (citing Hunter v.
    
    Pittsburgh, 
    207 U.S. 161
    , 178-79, 
    28 S. Ct. 40
    , 46-47, 
    52 L. Ed. 151
     (1907)).
    
    [¶46.]       Because neither the Fourteenth Amendment to the U.S. Constitution
    
    nor Article VI of the South Dakota Constitution apply in this case, the only process
    
    due the Department is that prescribed by statute. According to the Department,
    
    the Townships violated SDCL 8-3-1, 8-3-4, 8-3-15, 8-5-1, 8-5-9, 31-3-6, and 31-3-7.
    
    Several of these statutes have nothing to do with the procedural requirements of
    
    approving a petition to vacate a highway, including SDCL 8-3-15 (addressing
    
    method of electing township officers) and SDCL 8-5-9 (requiring, among other
    
    things, a township board of supervisors to file a transcript of its proceedings within
    
    30 days after receiving notice of an appeal). Even if these two statutes could be
    
    considered procedural requirements, “proof of prejudice is generally a necessary . . .
    
    element of a due process claim[.]” State v. Stock, 
    361 N.W.2d 280
    , 283 (S.D. 1985)
    
    (quoting United States v. Lovasco, 
    431 U.S. 783
    , 790, 
    97 S. Ct. 2044
    , 2048-49,
    
    
    52 L. Ed. 2d 752
     (1977)); accord Ka Fung Chan v. INS, 
    634 F.2d 248
    , 258 (5th Cir.
    
    1981) (“[P]roof of a denial of due process in an administrative proceeding requires a
    
    
    
    
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    #27981, #27982, #27986, #28008
    
    showing of substantial prejudice.”). The Department has failed to argue that either
    
    alleged violation was prejudicial. 18
    
    [¶47.]         The Department’s argument regarding SDCL 31-3-6 similarly fails.
    
    Under SDCL 31-3-6: “The petition of the voters shall set forth the beginning, course,
    
    and termination of the highway proposed to be located, changed, or vacated,
    
    together with the names of the owners of the land through which the highway may
    
    pass.” (Emphasis added.) As the emphasized text indicates, this is a requirement
    
    imposed on the petition, not the township board. The notice statute that
    
    corresponds with SDCL 31-3-6 requires only “a legal description of the location of
    
    the highway and the action proposed by the petition and how information, opinions,
    
    and arguments may be presented by any person unable to attend the hearing.”
    
    SDCL 31-3-7. And as above, the Department has failed to explain how it was
    
    prejudiced by this alleged statutory violation.
    
    [¶48.]         The Department’s remaining arguments each involve various notice
    
    requirements. The Department contends that all three Townships violated SDCL 8-
    
    3-4, which requires a township to publish notice of a special meeting. According to
    
    
    
    18.      The elections that the Department refers to involved sitting members of the
             Townships’ boards seeking reelection unopposed. The elections were
             conducted by verbal vote rather than paper ballot as prescribed by SDCL 8-3-
             15. The Department has not explained how the township elections would
             have been different had paper ballots been used.
             The Department’s argument regarding SDCL 8-5-9 is even more problematic.
             The Department alleges the Townships failed to generate transcripts of the
             hearings in which they approved the vacation petitions. But such transcripts
             necessarily cannot be generated until after the decision to vacate has been
             made. Thus, any alleged violation of SDCL 8-5-9 necessarily could not have
             affected the procedure leading up to the administrative action complained of
             in this case.
    
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    #27981, #27982, #27986, #28008
    
    the Department, Troy Township held special meetings without notice on April 24,
    
    July 7, and July 21, 2014. However, the circuit court found that although some
    
    discussion occurred at these meetings regarding the proposed highway vacations,
    
    the Township took no action on the petitions. Thus, any failure of notice that might
    
    have occurred in regard to Troy Township’s special meetings necessarily did not
    
    affect a liberty or property interest of the Department.
    
    [¶49.]         Next, the Department claims Valley Township violated SDCL 8-3-4
    
    and 8-5-1, which also require that when notice is given for a regular or special
    
    meeting, the notice must include “the time and place” of the meeting. The
    
    Department asserts that notice for Valley Township’s August 5, 2014 meeting
    
    indicated a location of “home of Brent Zimmerman” but did not give a physical
    
    address. The Department makes the same argument in regard to the notice for
    
    Butler Township’s August 11, 2014 meeting, which indicated a location of “Dennis
    
    Johnson’s Shop.” Although notice of a physical mailing address is preferable,
    
    SDCL 8-3-4 and -5-1 do not explicitly require such—these statutes simply require a
    
    “place.” While the descriptions at issue here may not always be sufficient to
    
    effectively communicate the place of meeting, they were in this case. 19 According to
    
    the circuit court, it took less than two minutes to locate the physical address for
    
    each location in a phone book.
    
    
    
    
    19.      The sufficiency of the description could depend on a number of factors,
             including the size of the local population base and the unusualness of the
             given name. This potential problem is easily avoided by including a physical
             mailing address.
    
                                              -29-
    #27981, #27982, #27986, #28008
    
    [¶50.]       Moreover, as with its other statutory arguments, the Department
    
    again fails to argue it was prejudiced by the Boards’ alleged failures in notice. The
    
    Department received actual notice from Troy and Butler Townships (as evidenced
    
    by the Department’s letters sent to those townships). It had constructive notice
    
    from Valley Township. And the Department’s objections to the vacations in Butler
    
    Township actually caused that township to reject two of the proposed vacations.
    
    Therefore, the Department has failed to establish prejudice in regard to any of the
    
    Townships’ alleged statutory violations.
    
                                         Conclusion
    
    [¶51.]       The separation-of-powers doctrine proscribes de novo review of
    
    administrative action that is not quasi-judicial. The administrative act of vacating
    
    a highway is not quasi-judicial. Therefore, the correctness of the Townships’
    
    decisions to vacate the highway segments at issue may not be reviewed; we consider
    
    only whether the Townships acted arbitrarily. The Department has the burden of
    
    proof. The circuit court’s findings establish that the Valley and Butler Townships’
    
    actions were not arbitrary, and the Department has not met its burden of proving
    
    the court’s findings to be clearly erroneous in regard to these townships. However,
    
    Chairman Duerre’s statements—considered in the broader context of the ongoing
    
    Day County saga—clearly establish that Troy Township improperly based its
    
    decision to approve the petitions on the resulting loss of public access. Therefore,
    
    we conclude Troy Township acted arbitrarily. Finally, the Department was not
    
    denied due process.
    
    
    
    
                                               -30-
    #27981, #27982, #27986, #28008
    
    [¶52.]       We affirm the circuit court’s decisions regarding Valley and Butler
    
    Townships. We reverse the court’s decision regarding Troy Township and remand.
    
    The court must remand the issue back to the Troy Township Board of Supervisors
    
    for rehearing.
    
    [¶53.]       ZINTER, SEVERSON, and KERN, Justices, and WILBUR, Retired
    
    Justice, concur.
    
    
    
    
                                            -31-