#26367-a-LSW

2012 S.D. 89

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                  ****
JIMMY KRSNAK and
LINDA L. KRSNAK,                           Appellants,

      v.

SOUTH DAKOTA DEPARTMENT OF
ENVIRONMENT and NATURAL
RESOURCES, STEVEN M. PIRNER,
DEPARTMENT SECRETARY and STAFF,
IN THEIR OFFICIAL CAPACITIES,              Appellees.

                                  ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SIXTH JUDICIAL CIRCUIT
                    HUGHES COUNTY, SOUTH DAKOTA

                                  ****

                     THE HONORABLE MARK BARNETT
                                Judge

                                  ****

JAY M. LEIBEL of
Issenhuth & Leibel, LLP
Madison, South Dakota                      Attorneys for appellants.

MARTY J. JACKLEY
Attorney General

PATRICIA ARCHER
Assistant Attorney General
Pierre, South Dakota                       Attorneys for appellees.


                                  ****
                                           ARGUED NOVEMBER 7, 2012

                                           OPINION FILED 12/12/12
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WILBUR, Justice

[¶1.]        The Krsnaks sought a writ of mandamus to stay or rescind the

Department of Environment and Natural Resources’ (DENR) approval of the plans

and specifications for the Brant Lake Sanitary District project. The Krsnaks claim

DENR did not meet the requirements contained in statutes, administrative rules,

and internal manuals. The trial court denied the writ of mandamus. The Krsnaks

appeal. We affirm.

                 FACTS AND PROCEDURAL BACKGROUND

[¶2.]        The Brant Lake Sanitary District was organized under SDCL chapter

34A-5 to provide a wastewater system for 235 residents and businesses near Brant

Lake in Lake County, South Dakota. On March 26, 2012, DENR approved plans

and specifications for the Brant Lake Sanitary District’s wastewater treatment

facility (Brant Lake facility) in accordance with SDCL 34A-2-27(1). Residents and

businesses near Brant Lake currently utilize private septic systems to handle their

wastewater disposal. The Brant Lake facility plans propose to join and expand the

Chester Sanitary District’s existing wastewater disposal system.

[¶3.]        Chester’s current treatment system consists of two cells or lagoons

covering approximately eight acres. In order to accommodate the increased flow of

wastewater from Brant Lake, the plans include the construction of an additional

treatment lagoon, which will tie into the existing two-cell lagoon system. Further,

the plans include the construction of additional piping to transport wastewater to

the treatment lagoons.




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[¶4.]         Chester’s existing wastewater disposal system operates under a

surface water discharge permit that was previously issued by DENR under SDCL

34A-2-36. Currently, the water discharge from the Chester facility flows into Skunk

Creek, a tributary of the Big Sioux River. Once the Brant Lake facility is

completed, discharge will continue to flow into Skunk Creek. Because the Brant

Lake facility is an add-on to the Chester facility, there are no pending applications

for any state-issued environmental permits by the Brant Lake Sanitary District.

However, when the Chester surface water discharge permit comes up for renewal,

the application permit will include the Chester and Brant Lake facility in its

entirety.

[¶5.]         Jimmy and Linda Krsnak reside in Lake County where they operate a

vegetable farm called “Linda’s Gardens.” The Krsnaks’ home and business are near

the proposed lagoon. The Krsnaks assert that the raw sewage from the Brant Lake

and Chester facility will enter the lagoon closest to the Krsnaks’ home, potable well,

and business. The Krsnaks estimate that their well is approximately 1000 feet from

the lagoon and that their home is approximately 1090 feet from the lagoon. Water

from the Krsnaks’ well is consumed by the Krsnaks and their employees, is used for

the irrigation of vegetable fields, and is used to clean and hydrate vegetables prior

to sale. Accordingly, the Krsnaks have opposed both the Chester and Brant Lake

facilities.

[¶6.]         After DENR approved the plans for the Brant Lake facility, the

Krsnaks filed an application for a writ of mandamus with the trial court on April

23, 2012. The application sought a writ ordering DENR to “stay the approval of the


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[Brant Lake Sanitary District] project until all requirements of the [internal

manuals], administrative rules and law have been met.” On the same day, the trial

court entered an alternative writ of mandamus directing DENR to show cause why

a permanent writ of mandamus should not issue. On May 2, 2012, the trial court

filed an amended alternative writ of mandamus ordering the parties to appear on

May 14, 2012, for a hearing on DENR’s anticipated motion to quash.

[¶7.]        On May 4, 2012, DENR filed a motion to quash the amended

alternative writ of mandamus. The trial court held a hearing on May 14, 2012, and

issued a bench decision denying the Krsnaks’ request for mandamus relief. The

Krsnaks appeal on the following issue: Whether the trial court abused its discretion

in denying the writ of mandamus requiring DENR to comply with applicable South

Dakota statutes, administrative rules, and DENR internal guidelines in approving

the plans and specifications for the Brant Lake facility.

                             STANDARD OF REVIEW

[¶8.]        “This Court reviews the decision to grant or deny a writ of mandamus

under an abuse of discretion standard.” Grant Cnty. Concerned Citizens v. Grant

Cnty. Bd. of Comm’rs, 2011 S.D. 5, ¶ 6, 794 N.W.2d 462, 464 (citing Vitek v. Bon

Homme Cnty. Bd. of Comm’rs, 2002 S.D. 45, ¶ 5, 644 N.W.2d 231, 233). “An abuse

of discretion refers to a discretion exercised to an end or purpose not justified by,

and clearly against reason and evidence.” Argus Leader v. Hagen, 2007 S.D. 96, ¶ 7,

739 N.W.2d 475, 478 (quoting Schafer v. Deuel Cnty. Bd. of Comm’rs, 2006 S.D. 106,

¶ 4, 725 N.W.2d 241, 243). Further, “[s]tatutory interpretation and application are




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questions of law that we review de novo.” State v. Goulding, 2011 S.D. 25, ¶ 5, 799

N.W.2d 412, 414.

                            ANALYSIS AND DECISION

[¶9.]         South Dakota law allows a trial court to issue a writ of mandamus

where no “plain, speedy, and adequate remedy [exists] in the ordinary course of

law.” SDCL 21-29-1, 1 -2. “A writ of mandamus is an extraordinary remedy that

will issue only when the duty to act is clear.” Woodruff v. Bd. of Comm’rs for Hand

Cnty., 2007 S.D. 113, ¶ 3, 741 N.W.2d 746, 747 (quoting Baker v. Atkinson, 2001

S.D. 49, ¶ 16, 625 N.W.2d 265, 271); see also Atkinson v. City of Pierre, 2005 S.D.

114, ¶ 26, 706 N.W.2d 791,799 (stating that “[m]andamus can only issue when the

duty to act is unequivocal”). A writ of mandamus “commands the fulfillment of an

existing legal duty, but creates no duty itself, and” does not act “upon . . . doubtful

or unsettled law.” Woodruff, 2007 S.D. 113, ¶ 3, 741 N.W.2d at 747 (quoting Sorrels

v. Queen of Peace Hosp., 1998 S.D. 12, ¶ 6, 575 N.W.2d 240, 242). “To prevail on a

writ of mandamus or prohibition, Petitioners must show ‘a clear legal right to

performance of the specific duty sought to be compelled and the [respondent] must

have a definite legal obligation to perform that duty.’” Cheyenne River Sioux Tribe



1.      The full text of SDCL 21-29-1 provides:

              The writ of mandamus may be issued by the Supreme and
              circuit courts, to any inferior tribunal, corporation, board, or
              person, to compel the performance of an act which the law
              specifically enjoins as a duty resulting from an office, trust, or
              station; or to compel the admission of a party to the use and
              enjoyment of a right or office to which he is entitled, and from
              which he is unlawfully precluded by such inferior tribunal,
              corporation, board, or person.

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v. Davis, 2012 S.D. 69, ¶ 13, 822 N.W.2d 62, 66 (quoting H & W Contracting, LLC v.

City of Watertown, 2001 S.D. 107, ¶ 24, 633 N.W.2d 167, 175) (alteration in

original).

[¶10.]        “Mandamus may only be used to compel ministerial duties, not

discretionary duties.” Sorensen v. Sommervold, 2005 S.D. 33, ¶ 9, 694 N.W.2d 266,

269 (citing Willoughby v. Grim, 1998 S.D. 68, ¶ 8, 581 N.W.2d 165, 168). “[W]hen

public officials have a mandatory duty to perform . . . mandamus may require

performance” but mandamus may not dictate details when there is discretion in

how the duty is to be performed. Id. ¶ 9. Further, “an application for a writ of

mandamus in the form of an affidavit [i]s sufficiently analogous to a complaint in a

civil action to permit a defendant to move to quash the alternative writ” if a

plaintiff’s application is found insufficient. McDonald v. State, 86 S.D. 570, 574, 199

N.W.2d 583, 585 (1972).

Statutes: SDCL 34A-2-27 and SDCL 34A-2-29

[¶11.]        The Krsnaks argue that the trial court improperly quashed the writ of

mandamus because DENR had a duty to abide by the first provision of SDCL 34A-2-

27. 2 Under the first provision of SDCL 34A-2-27, the Krsnaks argue that DENR

should have required the Brant Lake Sanitary District to obtain a construction

permit. Specifically, the provision requires “a valid construction permit from the

water management board for the disposal of all wastes which are, or may be,

discharged thereby into the groundwaters of the state[.]” SDCL 34A-2-27 (emphasis




2.       The parties agree that SDCL 34A-2-27 has two distinct provisions.

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added). The State argues that this portion of SDCL 34A-2-27 is inapplicable. We

agree.

[¶12.]       The Krsnaks claim that the Brant Lake facility “seepage” will

inevitably discharge into the surrounding groundwater and thus, require the facility

to obtain a construction permit in compliance with the first provision of SDCL 34A-

2-27. While the record indicates that the Brant Lake facility will discharge surface

water into Skunk Creek, the Krsnaks’ application was insufficient to establish that

the Brant Lake facility would discharge into the groundwaters of this State.

Because the Krsnaks’ application for writ of mandamus failed to adequately

establish groundwater discharge, the trial court correctly determined that DENR

did not have a clear duty to obtain a construction permit under SDCL 34A-2-27.

[¶13.]       The Krsnaks also argue that DENR abused its authority under the

second provision of SDCL 34A-2-27 and SDCL 34A-2-29. Specifically, the second

portion of SDCL 34A-2-27 provides:

             [N]or may any person carry on any of the following activities
             without approval of plans and specifications from the secretary
             of the department pursuant to § 34A-2-29 for the disposal of all
             wastes which are, or may be, discharged thereby into surface
             waters of the state:
                    (1) The construction, installation, modification, or
                    operation of any disposal system or part thereof, or any
                    extension or addition thereto[.]

SDCL 34A-2-29 provides that “[t]he secretary, under such conditions as the

secretary may prescribe, may require the submission of such plans, specifications,

and other information as the secretary deems necessary . . . .” (Emphasis added.)

Although “the Legislature cannot abdicate its essential power to enact basic policies

into law[,] . . . once the Legislature has created broad policy through its enactments,

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it may delegate in the execution of that policy certain quasi-legislative powers or

functions to executive or administrative officers or agencies[.]” State v. Moschell,

2004 S.D. 35, ¶ 15, 677 N.W.2d 551, 558 (citing Boe v. Foss, 76 S.D. 295, 313, 77

N.W.2d 1, 11 (1956)). The Legislature sets “standards to guide those officers or

agencies in the exercise of such powers.” Id.

[¶14.]         Here, the Legislature established the overall fundamental policy

regarding the prevention and regulation of water pollution in South Dakota. See

SDCL chapter 34A-2 (covering “Water Pollution Control”). Further, the Legislature

granted DENR the power to carry out these legislative objectives. See SDCL 34A-2-

28. The record demonstrates that the Brant Lake Sanitary District submitted plans

and specifications to DENR for approval and that those plans were appropriately

reviewed and approved. The discretionary language in both SDCL 34A-2-27 and

SDCL 34A-2-29 is indicative of the Secretary’s authority to act. Because those

statutes gave DENR discretion to approve the plans for the Brant Lake facility, the

trial court did not err in denying the writ based on DENR’s alleged failure to abide

by SDCL 34A-2-27 or SDCL 34A-2-29.

[¶15.]         Further, the Krsnaks’ application for writ of mandamus failed to

establish that DENR disregarded a clear duty to act under SDCL 34A-2-27 or SDCL

34A-2-29. Those statutes gave DENR discretion to require plans and specifications

as DENR deemed necessary to carry out applicable administrative rules and

statutes. 3 DENR’s approval of the Brant Lake facility plans and specifications was



3.       DENR acknowledged, however, that this discretion cannot be “absolute” or
         “unfettered.”

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not a ministerial act, but rather an appropriate exercise of the discretion afforded

DENR under SDCL 34A-2-27 and SDCL 34A-2-29. Accordingly, the trial court did

not abuse its discretion in finding that DENR did not disregard a clear duty to act

under either SDCL 34A-2-27 or SDCL 34A-2-29. See Woodruff, 2007 S.D. 113, ¶ 3,

741 N.W.2d at 747 (citing Baker, 2001 S.D. 49, ¶ 16, 625 N.W.2d at 271).

Administrative Rules

[¶16.]       The Krsnaks argue that the trial court improperly quashed the writ of

mandamus because DENR failed to follow the appropriate administrative rules

when reviewing the plans and specifications for the Brant Lake facility.

“Administrative rules have ‘the force of law and are presumed valid.’” State v.

Guerra, 2009 S.D. 74, ¶ 32, 772 N.W.2d 907, 916 (quoting Sioux Falls Shopping

News, Inc. v. Dep’t of Revenue & Regulation, 2008 S.D. 34, ¶ 24, 749 N.W.2d 522,

527). “[A]n agency is usually given a reasonable range of informed discretion in the

interpretation and application of its own rules when the language subject to

construction is technical in nature or ambiguous, or when the agency interpretation

is one of long standing.” Id. ¶ 32 (quoting Nelson v. S.D. State Bd. of Dentistry, 464

N.W.2d 621, 624 (S.D. 1991)). Further, “[a]dministrative regulations are subject to

the same rules of construction as are statutes.” Westmed Rehab, Inc. v. Dep’t of Soc.

Servs., 2004 S.D. 104, ¶ 8, 687 N.W.2d 516, 518 (citing Schroeder v. Dep’t of Soc.

Servs., 1996 S.D. 34, ¶ 9, 545 N.W.2d 223, 227-28). “When regulatory language is

clear, certain and unambiguous, our function is confined to declaring its meaning as

clearly expressed.” Id.




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[¶17.]         Here, the applicable administrative rules can be found under article

74:53, which addresses “Water Supply and Treatment Systems.” There are five

chapters under this title, one of which has been repealed. See ARSD 74:53:03.

Each remaining chapter covers a different aspect of water supply and treatment

systems. DENR evaluated the plans and specifications for the Brant Lake facility

under article 74:53:04, entitled “Works of Sanitary Significance.” The Krsnaks do

not contend that DENR abused its discretion in evaluating the plans and

specifications of the Brant Lake facility in accordance with ARSD 74:53:04 or that

DENR acted in violation of ARSD 74:53:04.

[¶18.]         Rather, the Krsnaks claim that DENR failed to consider applicable

administrative rules under chapter 74:53:01, titled “[i]ndividual and small on-site

wastewater systems.” 4 An individual on-site wastewater system is defined as “a

system or facility for treating, neutralizing, stabilizing, or dispersing wastes from

one source[.]” ARSD 74:53:01:01(30) (emphasis added). DENR contends that

chapter 74:53:01 is inapplicable because the Brant Lake facility will receive waste

from more than one source and because the Brant Lake add-on does not constitute a

“small on-site wastewater system.” We agree. The Brant Lake facility will provide



4.       Our previous statements regarding the application of titles within the
         statutory context are equally applicable when reviewing administrative rules.
         “This court may refer to [a] title in an effort to interpret the statute at issue.”
         In re Certification of a Question of Law from the U.S. Dist. Court Dist. of S.D.,
         W. Div., 402 N.W.2d 340, 342 (S.D. 1987) (citation omitted). Although not
         determinative, a title may nonetheless be instructive. However, “[t]he title or
         heading of a statute may not be used to lessen or expand the meaning of the
         statute.” Id. (citing Olson v. City of Sioux Falls, 63 S.D. 563, 262 N.W. 85, 87
         (1935)).


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a wastewater disposal system to approximately 235 persons within the Brant Lake

community. Therefore, the rules in ARSD 74:53:01 do not apply to the Brant Lake

Sanitary project.

[¶19.]         Even if DENR were required to comply with administrative rules

under ARSD 74:53:01, 5 an examination of the specific rules cited by the Krsnaks

establish that they do not apply in this instance. Specifically, the Krsnaks assert

that DENR was required to comply with ARSD 74:53:01:15, which addresses the

“[s]eparation required above groundwater or geological formations.” The Krsnaks

rely on appendices A-2 and A-3 of their brief, which were purportedly attached to

their “affidavit in support of response to respondent’s motion to quash the amended

writ of mandamus.” However, a review of the settled record reveals that the only

document actually attached to that affidavit is a one-page list of documents that the

Krsnaks included as exhibits to their trial brief. The trial brief, however, was not

filed and therefore, the appendices the Krsnaks rely on are not part of the record

before this Court.

[¶20.]         Further, an examination of the language of ARSD 74:53:01:15 removes

any question about its applicability to the Brant Lake facility. The rule establishes

certain requirements for “an absorption bed, trench, or seepage pit bottom . . . septic

tank, or any other component of a subsurface absorption system[.]” The definitions



5.       Here, we decline to address any other administrative rules that the Krsnaks
         allege were improperly complied with by DENR. In its initial application for
         writ of mandamus before the trial court, the Krsnaks made a general
         assertion that “specific portions of administrative rules” were not followed by
         DENR. However, the only rule specifically referenced by the Krsnaks was
         ARSD 74:53:01:15.

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found in ARSD 74:53:01:01 demonstrate that the Brant Lake facility, which is

designed with a lagoon, does not fall within these categories. Accordingly, we

cannot say that DENR had any duty, much less an unequivocal duty, to act under

ARSD 74:53:01:15. See Atkinson, 2005 S.D. 114, ¶ 26, 706 N.W.2d at 799.

Therefore, the trial court did not abuse its discretion in denying the Krsnaks’ writ of

mandamus for DENR’s alleged failure to comply with administrative rules under

chapter 74:53:01.

Internal Manuals

[¶21.]         Finally, the Krsnaks argue that the trial court erred in quashing the

writ of mandamus because DENR failed to apply its own internal guidelines when it

approved the plans and specifications for the Brant Lake facility. Specifically, the

Krsnaks assert that DENR was required to consider the specifications outlined in

two separate manuals. The first is the Recommended Design Criteria Manual for

Wastewater Collection and Treatment Facilities (RDCM), a DENR manual

published in 1991. 6 The second is a document entitled the Recommended

Standards for Wastewater Facilities (RSWF), a document published by ten states

termed the “Great Lakes – Upper Mississippi River,” a group that does not include

South Dakota. This document was last updated in 2004.

[¶22.]         In support of its contention that DENR’s failure to abide by these

manuals was faulty, the Krsnaks cite to case law addressing the importance of



6.       The affidavit of DENR engineer, Andrew Bruels provides that the guidelines
         within the RDCM “have not been adopted as rules by DENR” and that the
         document serves as “a guide for use by professional engineers in designing
         and preparing plans and specifications for wastewater facilities.”

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compliance with administrative rules, statutes, and ordinances. Yet, the manuals

and the guidelines at issue have not been codified within our statutes or

administrative rules. If DENR had “a specific duty to act, that duty must be

apparent in state law[.]” See Jensen v. Lincoln Cnty. Bd. of Comm’rs, 2006 S.D. 61,

¶ 11, 718 N.W.2d 606, 610-11. Further, the titles of the documents themselves

suggest that they are “Recommended Standards” and “Recommended Design

Criteria.” Therefore application of the standards would be discretionary on DENR’s

part. Accordingly, the trial court did not abuse its discretion in quashing the writ of

mandamus for DENR’s alleged failure to apply internal guidelines in the manner

urged by the Krsnaks because DENR did not have a clear duty to apply the RDCM

and RSWF when considering the plans and specifications for the Brant Lake

facility.

                                   CONCLUSION

[¶23.]       To prevail the Krsnaks must show a clear legal right to performance of

the specific duty sought to be compelled (rescission by DENR of approval of the

plans and specifications for the Brant Lake facility) and DENR must have a definite

legal obligation to act (rescind the approval of the plans and specifications). The

Krsnaks have not met their burden to show either their clear legal right or that

DENR disregarded a clear duty to act under the applicable statutes, administrative

rules, or manuals. Accordingly, the trial court did not abuse its discretion in

denying the Krsnaks’ application for writ of mandamus.

[¶24.]       Affirmed.




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[¶25.]     GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

SEVERSON, Justices, concur.




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