#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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#27293

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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#27293

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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#27293

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.




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