#27884-aff in pt & rev in pt-DG
2017 S.D. 5

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA


                                    ****

GERALDINE ADOLPH and
BARTH ADOLPH,                                Plaintiffs and Appellants,

v.

GRANT COUNTY BOARD OF
ADJUSTMENT and DUSTIN NELSON,                Defendants and Appellees.

                                    ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE THIRD JUDICIAL CIRCUIT
                     GRANT COUNTY, SOUTH DAKOTA
                                ****
                    THE HONORABLE VINCENT A. FOLEY
                                Judge

                                    ****
MITCHELL A. PETERSON of
Davenport, Evans, Hurwitz
 & Smith, LLP
Sioux Falls, South Dakota                    Attorneys for appellants.


JACK H. HIEB
ZACHARY W. PETERSON of
Richardson, Wyly, Wise, Sauck
 & Hieb, LLP
Aberdeen, South Dakota                       Attorneys for appellee Grant
                                             County Board of Adjustment.

BRIAN J. DONAHOE of
Donahoe Law Firm, P.C.
Sioux Falls, South Dakota                    Attorney for appellee Dustin
                                             Nelson.
                                    ****
                                             CONSIDERED ON BRIEFS
                                             ON JANUARY 11, 2017
                                             OPINION FILED 03/01/17
#27884

GILBERTSON, Chief Justice

[¶1.]        Geraldine and Barth Adolph appeal the circuit court’s affirmance of

the Grant County Board of Adjustment’s decision to approve Dustin Nelson’s

application for a conditional-use permit to construct a concentrated animal-feeding

operation (CAFO). Adolphs argue that Nelson’s proposed project violates the

Zoning Ordinance for Grant County (the ZOGC) and that consequently, the Board’s

decision was illegal. Adolphs also argue Nelson presented a new waste-disposal

plan at the public hearing, denying them an opportunity to voice their concerns.

Finally, Adolphs claim the Board was biased against their expert. We affirm in

part, reverse in part, and remand.

                          Facts and Procedural History

[¶2.]        On March 24, 2015, Nelson filed an application for a conditional-use

permit to construct and operate a Class A CAFO in Grant County. In the

application, Nelson indicated the proposed CAFO would be a dairy operation

consisting of 5,500 head of cattle. The Board scheduled a hearing for May 11, 2015,

to consider Nelson’s application. It published notice in a paper of general

circulation in Grant County for two weeks prior to the hearing.

[¶3.]        At the hearing, Nelson presented information in support of his

application through his attorney; his engineer, Brian Friedrichsen of Dakota

Environmental; and his developer, Arjan Blok. After Nelson’s presentation, the

Board opened up the hearing to public commentary. The Board allotted 10 minutes

to every person who wished to speak. A number of individuals, including Geraldine

and her attorney, spoke in opposition to the CAFO. Additionally, opponents


                                         -1-
#27884

submitted a 250-page report authored by Kathy Martin, an engineer from another

state. 1 One opponent used her allotted time to discuss Martin’s report, walking the

Board through several of Martin’s criticisms. Adolphs’ attorney also discussed

Martin’s credentials and report. He prepared a three-page “lay summary” for the

Board covering the highlights of Martin’s report.

[¶4.]         Opponents of the proposed CAFO raised substantive concerns with

Nelson’s application. In her report, Martin concluded that Nelson’s application

failed to explain how silage leachate2 would be captured and disposed of at the

proposed CAFO. Several opponents also addressed this concern in comments at the

hearing. In response, after the time for public comment, the Board asked for

clarification. Friedrichsen explained that leachate and other waste waters would be

collected and stored in waste-water ponds on site. Opponents also focused on past

environmental violations of A.J. Bos, the individual that Adolphs allege will

actually operate the CAFO. Opponents also asserted that Nelson’s nutrient-

management plan claimed manure-application agreements for acres already under

contract.

[¶5.]         The Board ultimately voted to approve Nelson’s application by a 5–2

vote. The Board conditioned approval on Nelson obtaining all applicable state

permits. It also required Nelson to obtain approval from the South Dakota



1.      Martin did not appear at the hearing.

2.      Silage is “[f]odder prepared by storing and fermenting green forage plants in
        a silo.” The American Heritage College Dictionary 1268 (3d ed. 1997). Silage
        leachate is a contaminant produced when a percolating liquid “remove[s]
        soluble or other constituents from” silage. Id. at 770.

                                          -2-
#27884

Department of Environment and Natural Resources (DENR) for his nutrient-

management plan. Additionally, the Board adopted one of Martin’s suggestions and

required Nelson to install a synthetic liner in the waste-water ponds. Adolphs

petitioned the circuit court for a writ of certiorari to review the legality of the

Board’s decision. The circuit court granted the writ but affirmed.

[¶6.]         Adolphs appeal, raising three issues:

              1.     Whether the Board regularly pursued its authority in
                     granting Nelson’s application for a conditional-use permit.

              2.     Whether Nelson presented a new plan for the disposal of
                     leachate during the hearing, denying Adolphs an
                     opportunity for meaningful participation.

              3.     Whether the Board exhibited bias requiring a new
                     hearing.

                                   Standard of Review

[¶7.]         “Our review of a board of adjustment’s decision is limited.” Grant Cty.

Concerned Citizens v. Grant Cty. Bd. of Adj’t, 2015 S.D. 54, ¶ 10, 866 N.W.2d 149,

154. “Any person . . . aggrieved by any decision of the board of adjustment may

present to a court of record a petition . . . setting forth that the decision is illegal, . . .

specifying the grounds of the illegality.” SDCL 11-2-61. “Upon the presentation of

the petition, the court may allow a writ of certiorari directed to the board of

adjustment to review the decision . . . .” SDCL 11-2-62. “The review upon writ of

certiorari cannot be extended further than to determine whether the . . . board . . .

has regularly pursued [its] authority . . . .” SDCL 21-31-8. “With a writ of

certiorari, we do not review whether the board’s decision is right or wrong.” Grant

Cty. Concerned Citizens, 2015 S.D. 54, ¶ 10, 866 N.W.2d at 154 (quoting Duffy v.

Cir. Ct., 7th Jud. Cir., 2004 S.D. 19, ¶ 33, 676 N.W.2d 126, 138). “A board’s actions
                                              -3-
#27884

will be sustained unless it did some act forbidden by law or neglected to do some act

required by law.” Id. (quoting Jensen v. Turner Cty. Bd. of Adj’t, 2007 S.D. 28, ¶ 4,

730 N.W.2d 411, 413). However, “certiorari will not lie to review technical lack of

compliance with law or be granted to correct insubstantial errors which are not

shown to have resulted in prejudice or to have caused substantial injustice[.]” State

ex rel. Johnson v. Pub. Utils. Comm’n of S.D., 381 N.W.2d 226, 230 (S.D. 1986);

14 Am. Jur. 2d Certiorari § 14, Westlaw (database updated February 2017).

                              Analysis and Decision

[¶8.]        1.     Whether the Board regularly pursued its authority
                    in granting Nelson’s application for a conditional-
                    use permit.

[¶9.]        Adolphs argue the Board did not regularly pursue its authority in a

number of ways. First, they contend the proposed CAFO will significantly

contribute to pollution in violation of the ZOGC. Second, they contend the Board

failed to consider the prevailing winds at the site of the proposed CAFO. Third,

they contend the Board failed to consider Bos’s alleged environmental violations.

Fourth, they contend the Board failed to consider increasing setbacks. Fifth, they

contend the Board double counted manure easements and that Nelson’s nutrient-

management plan is therefore insufficient. Sixth and finally, they contend the

Board failed to exercise independent judgment.

                              Contribution to pollution

[¶10.]       Adolphs contend the CAFO will significantly contribute to pollution.

Section 278 of the ZOGC enumerates several factors that the Board is required to

consider in determining whether a proposed CAFO is likely to be a significant

contributor of pollution:
                                          -4-
#27884

              1.     Size of feeding operation and amount of manure reaching
                     waters of the state;
              2.     Location of the feeding operation in relation to waters of
                     the state;
              3.     Means of conveyance of manure and process wastewater
                     into waters of the state; and
              4.     The slope, vegetation, rainfall and other factors affecting
                     the likelihood or frequency of discharge of animal wastes
                     and process wastewater into waters of the state.

Adolphs assert that Nelson’s application and engineering report “fail[] to explain

how runoff from the CAFO will be managed” and that “Nelson did not . . . address

the issue of runoff in his initial presentation to the Board.” Thus, Adolphs conclude

the Board’s “fail[ure] to cite to a single page of the report addressing this issue . . . is

a fatal omission.”

[¶11.]        Adolphs are incorrect. Nelson’s application addresses the conveyance

of waste water in several respects. The first page of Nelson’s engineering report

states:

              Manure will be collected from the manure alleys in the barn by
              vacuum trucks, which will transport it to a solids separation
              system. The barn will utilize separated manure solids as
              bedding, while the separated liquids will transfer to the pond
              system. No liquids will be recirculated from the ponds for use
              within the barns. With the exception of a small concrete pad for
              temporary storage of excess separated solids, all waste at the
              facility will be handled as a liquid. The storage volume
              available exceeds 365 days of manure and wastewater
              production for the proposed population. Additional volume is
              also provided in the ponds for residual volume, stormwater
              events and annual precipitation on the ponds and contributing
              areas, and freeboard of two feet. A factor of safety of over 30% is
              also provided over the calculated volume.




                                            -5-
#27884

Appendix 1 to Nelson’s report also details the anticipated volume of wash water and

runoff from the solid-waste pad and the feed storage area. These calculations are

included in the calculations for the total storage capacity required by the ponds.

[¶12.]       Moreover, whether the application itself addressed runoff is not

dispositive of the question whether the Board’s decision was legal. Section 278

requires the Board to consider the means of conveyance of waste water; it does not

require the Board to reject an application that fails to fully explain the issue.

Adolphs acknowledge that in addition to the written material submitted with the

application, “the public and Petitioners . . . raised the runoff issue”—both orally and

by written submissions—at the public hearing before the Board. According to

Adolphs, “Nelson’s lack of runoff containment” was “specifically addressed” by

opponents of the CAFO. In response to these concerns, Chairwoman Johnson asked

Nelson’s engineer about the plan for managing waste water. He replied: “Leachate

and runoff from the feed storage area is designed to be captured in the ponds. The

exact methodology of that is not included in the plan. This is a preliminary plan

designed to meet the requirements of the ordinance.” Nelson’s engineer also

informed the Board that the CAFO would employ “the same methodology used to

manage runoff at Bronson (Lakeside) Dairy”—another CAFO previously approved

by the Board. Thus, regardless of whether the application addressed how the

proposed CAFO would handle waste water, that issue was raised and addressed by

opponents and proponents of the CAFO at the public hearing before the Board.

[¶13.]       We are satisfied the Board regularly pursued its authority in regard to

ZOGC § 278. It is clear from the application and the discussion at the public


                                           -6-
#27884

hearing that the Board considered the proposed CAFO’s plan for disposing of waste

water. Whether the Board correctly decided that the CAFO would not be a

significant contributor of pollution is outside the scope of our review. See Grant Cty.

Concerned Citizens, 2015 S.D. 54, ¶ 17, 866 N.W.2d at 156.

                                    Prevailing winds

[¶14.]         Adolphs contend the Board failed to consider the prevailing winds of

the proposed CAFO site. Section 1304(5) of the ZOGC requires a CAFO to “dispose

of dead animals, manure and wastewater in such a manner as to control odors or

flies.” In considering an application for a conditional use permit, § 1304(5) requires

the Board to “review the need for control measures on a site specific basis, taking

into consideration prevailing wind direction and topography.” When asked during

her deposition what information she had regarding the prevailing winds at the

proposed CAFO site, Chairwoman Johnson replied: “My own experience. . . . [W]e

don’t consider prevailing winds.” 3 Thus, Adolphs conclude the Board failed to

consider something required by the ZOGC.

[¶15.]         Adolphs’ focus on the phrase taking into consideration prevailing wind

direction is unwarranted. As indicated by the language quoted above, see supra

¶ 14, § 1304(5) does not require the Board to consider prevailing winds for the sake

of considering prevailing winds. Rather, doing so is relevant in determining

whether to institute any of the procedures enumerated in § 1304(5) for controlling


3.       In preparation for their appeal before the circuit court, Adolphs deposed
         several of the Board’s members who voted to approve the CAFO. We
         question the propriety of deposing the decision maker in a quasi-judicial
         proceeding. However, as the issue was not raised in this appeal, we leave its
         resolution for another day.

                                           -7-
#27884

odors and flies. But Nelson’s management plan already incorporated several of

those controls. According to the plan, the proposed CAFO will utilize existing and

proposed vegetation (e.g., trees and shrubs) to disperse odors by agitation

(§ 1304(5)(3)). The solid-waste storage pad is designed to drain away from the pad

and into the waste-water ponds (§ 1504(5)(4)-(5)). The plan claims the facility is

designed to remove manure from the housing areas as soon as possible

(§ 1504(5)(6)). The plan also anticipates a “semi-solid crust” forming on the ponds

(§ 1504(5)(7)). In other words, the purpose of considering the prevailing winds is to

determine whether to impose odor controls such as those already included in

Nelson’s odor-management plan.

[¶16.]       Moreover, Adolphs make no assertion as to the velocity of the

prevailing winds at the site of the proposed CAFO. Therefore, they necessarily do

not argue that had the Board specifically considered prevailing winds, its decision

would have been different. Because they failed to make such an argument, they are

not entitled to relief on certiorari review even if the Board was technically required

to individually consider the prevailing winds. See Johnson, 381 N.W.2d at 230;

14 Am. Jur. 2d Certiorari § 14.

                           Bos’s environmental violations

[¶17.]       Next, Adolphs contend that all five members of the Board who voted to

approve the Application failed to consider Bos’s alleged environmental violations.

When the Board considers an application, § 1304(11)(D) of the ZOGC requires the

Board to “take into consideration current and past violations relating to [CAFOs]

that the applicant has an interest in.” The word applicant is defined by § 218 of the


                                          -8-
#27884

ZOGC as “[a]n individual, a corporation, a group of individuals, partnership, joint

venture, owners, or any other business entity having charge or control of one or

more concentrated animal feeding operations.” (Emphasis added.) Thus, if the

Board determines that an individual will have charge or control of the CAFO, his or

her past environmental violations must be considered by the Board.

[¶18.]       The Board’s failure to consider Bos’s alleged violations was illegal only

if the Board was required to consider them—i.e., if the Board determined that Bos

would control the CAFO. Opponents of the CAFO raised this issue at the hearing,

but the Board issued no findings on the matter. The Board’s silence might imply a

rejection of this factual assertion. However, an examination of the record makes

clear that at least three of the approving members of the Board erroneously

believed that past violations of a prospective operator were simply irrelevant in

deciding whether to approve an application. In his deposition, Board member Mike

Mach said:

             [Mach]: I really don’t think it matters who operates the dairy,
             as long as the fact findings are carried throughout and the rules
             are . . . followed.
             [Adolphs’ Attorney]: Does it matter to you who will be
             operating the dairy or who the applicant is?
             [Mach]: I don’t believe so.

Chairwoman Nancy Johnson shared the same view:

             [Adolphs’ Attorney]: Do you think it’s your role to look at who
             is it applying and who’s going to be running it, or do you just
             look at the site and whether the site makes sense under the
             ordinances?
             [Johnson]: We look at the applicants and that was Dustin
             Nelson.
             [Adolphs’ Attorney]: If the applicant has no intention of ever
             running the thing and just turning it over to someone else, do
                                           -9-
#27884

             you think you need to look at the background of the person
             that’s going to be running it?
             [Johnson]: No.

Board member Lori Brandt’s view was even more expansive:

             [Adolphs’ Attorney]: If the person operating the dairy has a
             history, current or past, of environmental violations, is that
             something that’s important to you?
             [Brandt]: In granting the CAFO, no.
             ....
             [Adolphs’ Attorney]: When you make a decision on a CAFO,
             do you look at and consider the current or past environmental
             violations of the person applying for the permit? Is that
             something you look at and consider?
             [Brandt]: No.

[¶19.]       The foregoing views are inconsistent with the text of §§ 218 and

1304(11)(D) of the ZOGC. Those ordinances require the Board to consider past

environmental violations of an applicant (which includes the individual having

charge or control of the CAFO). Therefore, the Board’s view that the past violations

of a prospective operator are always irrelevant is an error of law. Because the

Board applied an incorrect legal standard, its decision was illegal. See Duffy,

2004 S.D. 19, ¶ 19, 676 N.W.2d at 135. However, our decision on this point should

not be taken as an affirmance of Adolphs’ claim that Bos “will undisputedly be

operating the proposed CAFO[.]” Adolphs have not identified any evidence (aside

from their own allegations) establishing that Bos will control the CAFO. This

factual question should be determined in the first instance by the Board. If it

determines Bos will not control the CAFO, then it is not required to consider his

alleged environmental violations.




                                         -10-
#27884

                                 Increased setbacks

[¶20.]       Adolphs contend the Board was required but failed to consider

increasing the minimum setbacks required by the ZOGC. Although the circuit court

found that the Board did not consider increasing the minimum setbacks, Adolphs

have failed to establish the Board was required to do so. Under § 1304(8) of the

ZOGC, the Board “reserves the right to increase or decrease the minimum required

setbacks and separation distance on a site specific review, based on one or more

[enumerated] considerations.” (Emphasis added.) Empowering the Board to

consider increasing the minimum setbacks is not the same as requiring the Board to

do so. Because the Board was not required to consider increasing the minimum

setbacks, its decision not to do so was legal. See Grant Cty. Concerned Citizens,

2015 S.D. 54, ¶ 10, 866 N.W.2d at 154. Therefore, the Board regularly pursued its

authority in this regard.

                     Nutrient- and manure-management plans

[¶21.]       Adolphs assert that Nelson’s plan to dispose of manure was inadequate

because “[e]vidence was presented at the Hearing that some of the parcels of land

included in Nelson’s nutrient management plan and manure disposal plan were

already being used by Bronson Dairy or another CAFO for disposal of manure.”

Adolphs contend the Board did not regularly pursue its authority because it did not

reject the application on this basis. Adolphs have failed to establish that the Board

was legally required to do so. The ZOGC requires a CAFO to submit a nutrient-

management plan (§ 1304(3)) and a manure-management plan (§ 1304(4)).




                                         -11-
#27884

However, neither of these sections imposes a duty on the Board. 4 Therefore, the

Board did not fail to do something required by the ZOGC.

[¶22.]         Moreover, even if Adolphs’ assertion that Nelson’s application included

land unavailable for additional manure disposal is correct, they have not argued

that the land available is inadequate. We recently rejected the same argument in

Grant County Concerned Citizens:

               Even if the Board was required to accept as true [the opponents’]
               assertion that [the CAFO] overstated the amount of available
               land, [the opponents] offer[] no estimate of the true available
               acreage. Without doing so, claiming that [the CAFO] overstated
               the available acres is not synonymous with asserting the true
               number of available acres was insufficient.

2015 S.D. 54, ¶ 19, 866 N.W.2d at 156. Thus, Adolphs have also failed to allege

prejudice on this issue, see Johnson, 381 N.W.2d at 230; 14 Am. Jur. 2d Certiorari

§ 14, and reversal is not warranted on this issue.

                                  Independent judgment

[¶23.]         Finally, Adolphs contend the Board failed to regularly pursue its

authority by failing to consider ordinances outside of ZOGC Article XIII (which

concerns CAFO-specific regulations). In particular, Adolphs contend the Board

ignored § 504(4) of the ZOGC, which requires the Board to “make a finding . . . that

the granting of the conditional use will not adversely affect the public interest.”

Adolphs also contend the Board ignored § 504(5)(h), which states:

               Before any conditional use is granted, the Board . . . shall make
               written findings certifying compliance with the specific rules
               governing individual conditional uses and that satisfactory


4.       In fact, under the explicit terms of these sections, final approval of the
         nutrient-management plan rests with DENR, not the Board.

                                            -12-
#27884

             provision and arrangement has been made concerning the
             following, where applicable:
             ....
             General compatibility with adjacent properties and other
             property[.]

Contrary to Adolphs’ assertions, the Board did make such findings. In its seventh

finding of fact, the Board found that “the granting of the conditional use as per

Grant County Ordinance Section 504, that the use would not adversely affect the

public interest.” In its ninth finding of fact, the Board found “that the conditional

use is generally compatible with adjacent properties and other property in the

district.” These findings are what §§ 504(4) and 504(5)(h) required of the Board.

[¶24.]       Even so, Adolphs contend that in depositions, several members of the

Board who voted to approve the Application consistently stated that “if the specific

CAFO requirements are met, then the permit is issued with no further decisions or

judgments to be made.” In their response brief, Adolphs claim that “four approving

Board members testified under oath that they never considered Ordinances § 504.”

The first deposition referred to is that of Board member Gary Lindeman:

             [Adolphs’ Attorney]: I’m going to Section 1304 of the
             ordinance that has a number of different subparts, and you’re
             certainly welcome to look at this, but it includes things such as a
             nutrient management plan is required, manure management,
             fly and odor control, setbacks for the site, manure application
             setbacks, things like that.
             [Lindeman]: Yes.
             [Adolphs’ Attorney]: Are you generally familiar with Section
             1304?
             [Lindeman]: I’m generally, yes.
             [Adolphs’ Attorney]: Okay. If an applicant submits an
             engineering report that states all the requirements in 1304 are
             met, do you vote yes to approve the permit?
             [Lindeman]: Yes.
                                         -13-
#27884

             [Adolphs’ Attorney]: Are there any other factors that you look
             at that aren’t set forth in 1304?
             [Lindeman]: I have to think about that one.
             [Adolphs’ Attorney]: Well, let me ask you this. In this case,
             did you look at any other factors?
             [Lindeman]: No.

The foregoing exchange is representative of the questions posed to all four Board

members by Adolphs’ attorney.

[¶25.]       Adolphs’ claim is not supported by the deposition excerpts they cite.

Adolphs’ attorney did not ask the Board members if they ignored § 504, nor did he

ask them whether they thought § 1304 supersedes other applicable ordinances. At

no point did Adolphs’ attorney even mention another ordinance or use the phrases

adversely affect the public interest or general compatibility with adjacent properties.

Instead, Adolphs’ attorney specifically asked the Board members about the factors

enumerated in § 1304. In light of the Board’s findings complying with the

requirements of §§ 504(4) and 504(5)(h), we are not convinced that the Board

members interpreted Adolphs’ attorney’s question as asking whether they would

ignore the requirements of those sections if faced with an application that met the

requirements of § 1304. We will not interpret the Board members’ answers to an

ambiguous question posed months after the Board published its findings as

inconsistent with those findings when a reasonable, alternative interpretation is

found. Thus, we are satisfied the Board regularly pursued its authority on this

issue.




                                          -14-
#27884

[¶26.]       2.    Whether Nelson presented a new plan for the
                   disposal of leachate during the hearing, denying
                   Adolphs an opportunity for meaningful
                   participation.

[¶27.]       Next, Adolphs argue they were denied due process. They claim

“Nelson’s plan for managing runoff changed” in response to comments made by

opponents at the public hearing. According to Adolphs, “[t]he Application fail[ed] to

describe a means of managing runoff” and that “during rebuttal[,] the plan

changed.” Thus, Adolphs contend “[t]he engineer’s new ‘plan’ to manage runoff was

submitted without any notice to the public” and “[b]ecause the new plan was given

during rebuttal, after public commentary concluded, the public had no opportunity

to meaningfully respond.”

[¶28.]       “Due process requires adequate notice and an opportunity for

meaningful participation.” Grant Cty. Concerned Citizens, 2015 S.D. 54, ¶ 31,

866 N.W.2d at 160 (quoting Osloond v. Farrier, 2003 S.D. 28, ¶ 19 n.4, 659 N.W.2d

20, 25 n.4 (per curiam)). As discussed above, Nelson’s application did indicate that

various forms of waste and runoff would be collected and diverted to the CAFO’s

waste ponds. See supra ¶ 11. Nelson’s engineer said the same in rebuttal. See

supra ¶ 12. Consequently, his comments did not constitute a new plan. Moreover,

the fact that the Board adopted Martin’s suggestion and required the waste-water

ponds be lined with a synthetic material to help prevent seepage into the

surrounding soil is evidence that Adolphs’ participation at the public hearing was

meaningful. Therefore, Adolphs were not denied due process.




                                        -15-
#27884

[¶29.]       3.     Whether the Board exhibited bias requiring a new
                    hearing.

[¶30.]       Finally, Adolphs argue the Board exhibited bias against them. “Due

process requires fair and impartial consideration.” Armstrong v. Turner Cty. Bd. of

Adj’t, 2009 S.D. 81, ¶ 32, 772 N.W.2d 643, 654. “[T]he test we have applied in

determining whether . . . a fair and impartial hearing [occurred] is whether there

was actual bias or an unacceptable risk of actual bias.” In re Conditional Use

Permit # 13-08, 2014 S.D. 75, ¶ 19, 855 N.W.2d 836, 842 (quoting Hanig v. City of

Winner, 2005 S.D. 10, ¶ 11, 692 N.W.2d 202, 206). A risk of bias is unacceptable

“[i]f the circumstances show a likely capacity to tempt the official to depart from his

duty[.]” Id. (quoting Hanig, 2005 S.D. 10, ¶ 15, 692 N.W.2d at 207).

[¶31.]       Adolphs contend “Nelson and his engineer, attorney, and developer

were allowed to advocate for the permit, but the public was restricted from speaking

if represented by counsel.” This claim is a misrepresentation of the restriction

actually imposed by the Board. Members of the public were not excluded from

speaking if represented by counsel; rather, the Board prohibited a member of the

public from speaking if he or she opted to have someone else speak on his or her

behalf. In other words, the Board prevented an individual from exceeding the

allotted speaking time by speaking both in person and also by proxy. Even so,

Geraldine and her attorney were each permitted to speak for the full period of time

allocated to each member of the public. Moreover, Adolphs have failed to identify

any person that the Board prevented from speaking.

[¶32.]       Adolphs also contend “[t]he Board read Nelson’s engineering report in

its entirety, but refused to read the report of Kathy Martin, a professional engineer

                                         -16-
#27884

with two decades of CAFO experience.” Martin’s report totaled 250 pages and was

dated the day of the hearing. The Board heard extensive comments from multiple

opponents of the CAFO detailing the same material contained in the report, and

Adolphs’ attorney provided a summary to the Board to ensure it was aware of the

highlights of Martin’s report. Moreover, the Board actually adopted one of Martin’s

recommendations as a condition of approving the application (i.e., synthetic liners

for the waste-water ponds). Therefore, it appears the Board did consider opposition

testimony and written submissions.

[¶33.]       Lastly, Adolphs contend Chairwoman Johnson was “demonstrably

hostile” toward their engineer, Kathy Martin. Adolphs claim Johnson dismissed

Martin for not being a resident of South Dakota and for being hired by a third

party. The only evidence cited by Adolphs is Johnson’s deposition testimony (taken

months after the date of the hearing):

             [Adolphs’ Attorney]: Did you review the report from engineer
             Kathy Martin that was submitted at the hearing?
             [Johnson]: Briefly.
             [Adolphs’ Attorney]: Glanced at it?
             [Johnson]: Glanced at it. I don’t know who Kathy Martin is
             and she’s not a—in South Dakota, is that correct? Was she from
             Iowa?
             [Adolphs’ Attorney]: Does it matter where she’s from?
             [Johnson]: I—it’s a different state, different rules. She didn’t
             present anything herself. There [were] letters from her.
             [Adolphs’ Attorney]: Right. Part of the hearing process is
             submission of oral testimony and written testimony?
             ....
             [Johnson]: Yes.
             [Adolphs’ Attorney]: Do you know anything about her
             background or credentials?

                                         -17-
#27884

               [Johnson]: No.
               [Adolphs’ Attorney]: Was anything about her background or
               credentials included with her report?
               [Johnson]: Possibly, yeah. I think they were, that she was an
               engineer.
               [Adolphs’ Attorney]: And to be fair—
               [Johnson]: But she was—she was solicited by someone else.
               [Adolphs’ Attorney]: And was Dakota Environmental solicited
               by someone else?
               [Johnson]: No. Yes, they were the engineers for the party
               building the dairy.

Read in context, Johnson’s comments were aimed at explaining her lack of

familiarity with Martin and Martin’s credentials—i.e., Johnson was unfamiliar with

Martin because she was from out of state, did not appear in person at the hearing,

and was solicited by somebody other than the Board. 5

[¶34.]         Adolphs also claim Johnson favored Nelson’s engineer “because she

knew him.” But this claim lacks essential context. Adolphs’ support for this claim

is a statement made by the Board’s attorney at the hearing before the circuit court:

               [T]he comments [Adolphs’ attorney] makes about [Johnson’s]
               dismissiveness of the engineer that was hired by his clients to
               put this report together, which was then as I pointed out,
               presented for the first time at the hearing, her comments were
               basically, look, I am familiar with the engineering firm that
               designed this CAFO. They have designed others, and I am
               familiar with their work. I trust them. Because of my past
               experience, they haven’t let me down. What they say they are
               going to build, they build. What she said with respect to the
               expert that they had hired when she was pressed about, well,

5.       Adolphs also suggest that Johnson’s statement that Martin “was solicited by
         someone else” refers to Nelson—i.e., that Martin was solicited by someone
         other than Nelson. This view is inconsistent with Johnson’s statements
         quoted in this paragraph. Johnson also referred to “the engineers for the
         party building the dairy”—i.e., Nelson—as “solicited by someone else[.]”
         Thus, “someone else” can only mean “someone other than the Board.”

                                          -18-
#27884

             why would you believe them and not her is, I don’t know her.
             She is not even from here. I have never dealt with her before.
             She candidly said, did I put more weight on what the engineer
             that the applicant brought me? Yeah, because from my
             experience sitting on this Board, they have been right. They
             have done what they have said they were going to do and what
             they have told us has checked out. It’s no different than any
             other fact-finder or any other judge who has to make a
             determination about, am I going to believe this evidence, or am I
             going to believe that evidence? And when asked why, you
             candidly answer, because this seemed more credible for
             whatever reason. It could be because I have heard this expert
             before. I have dealt with them. They haven’t lied to me. And
             their credentials are better in my opinion.

As the Board’s attorney illustrates, Johnson—as a member of the fact-finding

Board—made a credibility determination. Adolphs have not argued or presented

authority indicating that a Board member’s past encounters with a professional

organization cannot be considered in weighing the credibility of competing

testimony or written submissions. Therefore, these comments are not evidence of

bias.

                                    Conclusion

[¶35.]       Adolphs were not denied due process when Nelson’s engineer

responded to their questions during the public hearing. Adolphs have failed to

present any evidence of either actual bias or an unacceptable risk of bias. Although

the Board regularly pursued its authority in most respects, it erroneously believed

that past environmental violations of a prospective applicant are never relevant in

considering whether to approve an application. Therefore, we affirm in part,

reverse in part, and remand for further proceedings consistent with this opinion.

[¶36.]       ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.



                                        -19-
