#28085-r-GAS
2017 S.D. 81

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   ****

RAYMOND C. OYEN,                            Petitioner and Appellee,

      v.

LAWRENCE COUNTY
COMMISSION,                                 Respondent and Appellant.


                               ****
                  APPEAL FROM THE CIRCUIT COURT OF
                     THE FOURTH JUDICIAL CIRCUIT
                   LAWRENCE COUNTY, SOUTH DAKOTA
                               ****
                  THE HONORABLE MICHELLE K. COMER
                                Judge
                               ****


LONNIE R. BRAUN of
Thomas, Braun, Bernard
 & Burke, LLP
Rapid City, South Dakota

RICHARD P. TIESZEN of
Tieszen Law Office
Pierre, South Dakota                        Attorneys for petitioner and
                                            appellee.

BRUCE L. OUTKA
Lawrence County Deputy
 State’s Attorney
Deadwood, South Dakota

JOHN R. FREDERICKSON
Deadwood, South Dakota                      Attorneys for respondent and
                                            appellant.
                                   ****

                                            ARGUED AUGUST 29, 2017
                                            OPINION FILED 12/06/17
#28085

SEVERSON, Justice

[¶1.]        Various landowners petitioned the Lawrence County Commission

requesting that the County maintain a road providing access to their homes. The

County denied the Landowners request. Petitioner Raymond Oyen appealed the

County’s action to the circuit court. The County filed a motion to join the United

States of America as an indispensable party. The court denied the motion, finding

the County responsible for the road and directing the County to provide

maintenance. The County appeals. We reverse, and remand for the circuit court to

join, if feasible, the United States of America as an indispensable party. If joinder

is not possible the circuit court must determine whether to proceed or dismiss the

case.

                                    Background

[¶2.]        In 1930, Miner’s and Merchant’s Savings Bank granted Lawrence

County an easement for the “free and uninterrupted use, liberty and privilege of a

right of way of the customary width, for highway purposes . . . to carry with it all of

the attendant burdens and easements of a public highway.” That right of way

covers South Rapid Creek Road (SRCR), which is at issue in this case. Since the

1970s, the County approved three platted subdivisions indicating that SRCR is a

county road or a county/forest service road. In 1992, the County granted the United

States of America:

             exclusive easements for the existing road for use for all lawful
             purposes by the United States . . . and the general public when
             authorized by the Grantee, over and across the parcels of land
             . . . described as follows: South Rapid Road No. 231.6 . . . South
             Rapid Branch Road No. 231.6A . . . the said easements hereby
             granted are for the reconstruction, maintenance, and full, free

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             and quiet use and enjoyment of the existing roads as they are
             presently located and in place over and across the above
             described premises.

The minutes of the 1992 Commission reflect that the motion to transfer was made

in order to “follow the recommendation of the Highway Superintendent and

authorize the Chairman to sign a transfer of existing easements.”

[¶3.]        On August 15, 2015, Lawrence County landowners owning real

property along SRCR, petitioned the Lawrence County Commission to provide snow

removal and maintenance of SRCR. The Commission reviewed the matter at its

meeting on October 13, 2015, and denied the request for service to the road.

Thereafter, Oyen appealed the determination to the circuit court. The United

States of America was not a party to the proceedings, and on June 7, 2016, the

County filed a motion to dismiss Oyen’s petition, or in the alternative, join the

United States as an indispensable party. The circuit court conducted a hearing on

the motion on June 20, 2016, and denied the motion on July 22, 2016. In its

findings of fact and conclusions of law on the motion, the circuit court stated:

“Because Lawrence County failed to transfer its duty to maintain SRCR to the

Forest Service, the Forest Service is not an indispensable Party to this action.”

[¶4.]        The circuit court issued further findings of fact and conclusions of law

on November 21, 2016. The court found that SRCR has been open to and used by

the public as a public roadway since the 1930s. It also found that agreements

between the County and the Forest Service indicate that both the County and

Forest Service admit that SRCR is on the County and Forest Service road systems.

An agreement dated May 12, 1983, stated that the “county is vitally interested in


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providing and operating a road system to provide adequate vehicular access for

residents and commercial enterprises for both intra and inter-county travel[.]” The

circuit court found Lawrence County’s witness testimony that SRCR was a Forest

Service road inconsistent with documentary evidence (Commission minutes and

recorded easements) reflecting that the County had joint ownership and

responsibility for SRCR. It found such testimony to also be inconsistent with the

“attempt to transfer the road easements to the United States Forest Service[.]”

Finally, it found that the “County’s decision to deny the petition was based on false

information and lack of relevant and competent evidence and the County’s refusal

to review documentary evidence of ownership by the County was therefore arbitrary

and capricious.”

[¶5.]        The circuit court ultimately determined that Lawrence County is

responsible for maintaining the road pursuant to SDCL 31-12-26. The court

concluded that the County, through its actions of accepting the right-of-way

easements and approving the plats, “agreed to hold the property in trust for the

benefit of the Petitioners and other members of the Public . . . which responsibility

cannot simply be transferred to the United States Forest Service without ensuring

such obligations and responsibilities are protected and assured pursuant to SDCL

11-3-12[.]” The court noted that pursuant to SDCL 31-1-3, “[a]ll public highways

. . . lawfully established shall continue as established until changed or vacated in

some manner provided by law.” The court concluded that the Commission did not

follow the specific procedure set forth in SDCL 31-3-6 through SDCL 31-3-9 for

vacating or changing a county secondary road.


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                            Standard of Review

[¶6.]        In South Dakota Department of Game, Fish and Parks v. Troy

Township, Day County, we recently clarified the standard of review relating to

actions of a board of county commissioners. 2017 S.D. 50, 900 N.W.2d 840. If the

challenged county commission action is determined to be quasi-judicial, this court

may conduct a de novo review of that action. Troy Twp., 2017 S.D. 50, ¶ 20, 900

N.W.2d at 849. An 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 ‘looking to the future and changing

existing conditions by making a new rule, to be applied thereafter to all or some

part of those subject to its power.’” Id. ¶ 21 (quoting Prentis v. Atl. Coast Line Co.,

211 U.S. 210, 226, 29 S. Ct. 67, 69, 53 L. Ed. 150 (1908)). “Thus . . . quasi-judicial

acts are those that could have been ‘determined as an original action in the circuit

court.’” Id. (quoting Champion v. Bd. of Cty. Comm’rs, 5 Dakota 416, 430, 41 N.W.

739, 742 (1889)).

[¶7.]        We review a circuit court’s findings of fact for clear error and its legal

conclusions de novo. Coffey v. Coffey, 2016 S.D. 96, ¶ 7, 888 N.W.2d 805, 808.

Whether a party is an indispensable party is a question of law that we review de

novo. Busselman v. Egge, 2015 S.D. 38, ¶ 6, 864 N.W.2d 786, 788.

                                       Analysis

[¶8.]        We find it necessary to clarify that in this appeal, we are not reviewing

Lawrence County’s obligation to maintain a road or Lawrence County’s grant of an

easement to the United States. Rather, we are reviewing the circuit court’s


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procedural decision to not join the United States as an indispensable party to this

action. Thus, our review is de novo and we proceed by determining whether the

United States Forest Service is an indispensable party.

[¶9.]         Lawrence County contends that the United States of America is an

indispensable party to this case. SDCL 15-6-19(a) 1 and SDCL 15-6-19(b) 2 pertain to


1.      SDCL 15-6-19(a) provides:
              A person who is subject to service of process shall be joined as a
              party in the action if:
              (1) In his absence complete relief cannot be accorded among
                  those already parties; or
              (2) He claims an interest relating to the subject of the action and
                  is so situated that the disposition of the action in his absence
                  may (i) as a practical matter impair or impede his ability to
                  protect that interest or (ii) leave any of the persons already
                  parties subject to a substantial risk of incurring double,
                  multiple, or otherwise inconsistent obligations by reason of
                  his claimed interest. If he has not been so joined, the court
                  shall order that he be made a party. If he should join as a
                  plaintiff but refuses to do so, he may be made a defendant,
                  or, in a proper case, an involuntary plaintiff. If the joined
                  party objects to venue and his joinder would render the
                  venue of the action improper, he shall be dismissed from the
                  action.

2.      SDCL 15-6-19(b) provides:
              If a person as described in subdivisions 15-6-19(a)(1) and (2)
              cannot be made a party, the court shall determine whether in
              equity and good conscience the action should proceed among the
              parties before it, or should be dismissed, the absent person being
              thus regarded as indispensable. The factors to be considered by
              the court include: first, to what extent a judgment rendered in
              the person’s absence might be prejudicial to him or those
              already parties; second, the extent to which, by protective
              provisions in the judgment, by the shaping of relief, or other
              measures, the prejudice can be lessened or avoided; third,
              whether a judgment rendered in the person’s absence will be
              adequate; fourth, whether the plaintiff will have an adequate
              remedy if the action is dismissed for nonjoinder.

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the joinder of indispensable parties. This court has previously interpreted SDCL

15-6-19(a), stating “[a]n indispensable party is one whose interest is such that a

final decree cannot be entered without affecting that interest or in whose absence

the controversy cannot be terminated.” Busselman, 2015 S.D. 38, ¶ 6, 864 N.W.2d

at 788 (quoting Thieman v. Bohman, 2002 S.D. 52, ¶ 13, 645 N.W.2d 260, 262).

[¶10.]       The circuit court determined the County failed to follow the proper

procedure to grant an easement in the right-of-way to the United States. Such a

ruling clearly affects the federal government’s interest and determines its rights

under the 1992 easement. Thus, the determination in this action cannot be made in

the absence of the federal government, as it has “an interest relating to the subject

of the action and is so situated that the disposition of the action in [its] absence may

. . . impair or impede [its] ability to protect that interest.” SDCL 15-6-19(a)(2)(i). It

was clear error for the circuit court to rule on the easement without first

determining whether the United States of America was a party that should have

been joined if feasible under SDCL 15-6-19(a) and SDCL 15-6-19(b).

                                      Conclusion

[¶11.]       Because the circuit court made its decision without an indispensable

party, we reverse, and remand to determine whether the United States of America

can be added as a party. If joinder is not feasible, then the circuit court must

determine whether the case should be dismissed under SDCL 15-6-19(b).

[¶12.]       GILBERTSON, Chief Justice, and ZINTER and KERN, Justices, and

WILBUR, Retired Justice, concur.




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[¶13.]       JENSEN, Justice, not having been a member of the Court at the time

this action was submitted to the Court, did not participate.




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