Supreme Court Remand of Crinion CAFO Shows Mickelson’s Effort to Erode Citizen Rights

Bob Mercer reports that the South Dakota Supreme Court has sent a legal challenge against Michael Crinion’s proposed 3,999-head factory dairy in the Lake Hendricks watershed back to circuit court for further review. Interestingly, had Rep. Mark Mickelson managed to pass his 2016 pro-CAFO bill a couple years earlier, that challenge might have gone poof, and Crinion might be milking right now.

Recall that the Hendricks, Minnesota, City Council and the Lake Hendricks Improvement Association appealed an October 2014 zoning decision by the Brookings County Planning and Zoning Commission that would have allowed Crinion to build his newest confined animal feeding operation near Oak Lake, upstream from Lake Hendricks. They also got White, SD, farmer and taxpayer Norris Patrick to sign onto the lawsuit. Crinion, under his corporate name of Killeskillen LLC, argued that none of the plaintiffs had standing under SDCL 11-2-61, the statute authorizing court appeals of decisions by county boards of adjustment. Crinion claimed merely being a taxpayer was insufficient to show Patrick was an “aggrieved party” authorized by statute to appeal this decision.

The South Dakota Supreme Court found otherwise. Our justices read SDCL 11-2-61 carefully—

Any person or persons, jointly or severally, aggrieved by any decision of the board of adjustment, or any taxpayer, or any officer, department, board, or bureau of the county, may present to a court of record a petition duly verified, setting forth that the decision is illegal, in whole or in part, specifying the grounds of the illegality. The petition shall be presented to the court within thirty days after the filing of the decision in the office of the board of adjustment [SDCL 11-2-61 at time of filing of Hendricks appeal].

—and said that language clearly creates two classes of potential appellants: aggrieved parties or any county taxpayer or official:

The plain language of SDCL 11-2-61 indicates the Legislature intended to create disjunctive classes of plaintiffs entitled to petition the circuit court. The statute identifies those entitled to appeal as “[a]ny person or persons, jointly or severally, aggrieved by any decision of the board of adjustment, or any taxpayer . . . of the county[.]” Id. (emphasis added). This description of plaintiffs is unlike those described in SDCL 7-8-27. SDCL 7-8-27 identifies one classification: “any person aggrieved[.]” So, contrary to Killeskillen’s claim, the analysis in Cable interpreting “any person aggrieved” to require three elements to establish standing is distinguishable. Under the plain language of SDCL 11-2-61, a taxpayer in Brookings County may appeal a board of adjustment’s decision. Because Norris Patrick is a taxpayer in Brookings County, he has standing under SDCL 11-2-61 [Justice Lori Wilbur, rulingLake Hendricks Improvement Assoc. et al. v. Brookings County Planning and Zoning et al., 2016 S.D. 48, 2016.06.28, p. 11].

Patrick’s a taxpayer; Patrick can appeal. This case goes back to the Third Circuit to decide whether Brookings County properly assigned conditional use permit authority to its planning and zoning board.

But wait: if an identical case came to the court today, Patrick could not appeal, at least not by mere dint of his taxpayerhood. Rep. Mark Mickelson’s House Bill 1140 became law last Friday, and among other changes making it harder for citizens to challenge big polluting CAFOs, Mickelson reworded the key statute that allows Patrick to sue:

Petition to court contesting decision of board. Any person or persons, jointly or severally, or any taxpayer, or any officer, department, board, or bureau of the county, aggrieved by any decision of the board of adjustment may present to a court of record a petition duly verified, setting forth that the decision is illegal, in whole or in part, specifying the grounds of the illegality. The petition shall be presented to the court within thirty days after the filing of the decision in the office of the board of adjustment [emphasis mine; SDCL 11-2-61, as amended by 2016 HB 1140 Section 6, enacted 2016.07.01].

Rep. Mickelson moved that participial modifier—aggrieved by an decision of the board of adjustment—to the end of the grammatical compound subject of the sentence, signaling a change in legislative intent. Mickelson didn’t want aggrieved to apply only to the first part; he wanted it to apply to anyone filing an appeal. Mickelson has thus stripped numerous taxpayers of a clear right they had to appeal their county board of adjustment’s decisions.

The Court’s ruling shows that Rep. Mickelson’s change to this zoning law was no mere grammatical clean-up; it was a deliberate effort to reduce citizens’ power and give special protection to a small class of businesspeople. Mickelson and HB 1140 thus epitomize the South Dakota Republican Party.


6 Responses to Supreme Court Remand of Crinion CAFO Shows Mickelson’s Effort to Erode Citizen Rights

  1. Paul Seamans

    So far it appears that Mark Mickelson’s run for the governor’s office is based on the need for more CAFO’s in South Dakota. We’ll see how that plays out.

  2. That seems silly, Mr. Seamans. I would expect and bet you a gravy tater breakfast that young Mr. Mickelson has a stout package of his positions if he announces to run. Everybody hates those CAFO things and Mr. Mickelson probably is smart enough to know so.

    So you know, I like buffets with nicely done bacon and a variety of breakfast taters that can absorb slathering. You will owe me a breakfast, sir, I have no doubt.

  3. Paul Seamans

    grudznick, I wished that you were right about everyone hating CAFO’s however that is not the case. A big part of Gov. Daugaard’s economic development plan is enticing people to start concentrated animal feeding operations in South Dakota. Mark Mickelson has been a big backer of that plan in the legislature. I am at a loss at the moment to think of any other of Mark’s accomplishments at Pierre. Maybe you’re being facetious, I can’t tell.

  4. mike from iowa

    From Argus Leader- None of this is news to Mickelson, whose passion for economic development, technical schools and agricultural modernization has him excited about becoming more than the grandson or son of a famous governor and simply someone who can make South Dakota better.

    There is that dreaded word tech schools.

  5. Mickelson will not eat Jackley’s milkshake. That Marty has worked to hard saving all of his peer’s asses to let this fake heir apparent steal his thunder. Besides, we are all waking to the fact that Mickelson and the rest of the torture boys are loosing their support. http://www.huffingtonpost.com/entry/farm-animal-rights-revolution_us_577304f6e4b0352fed3e5b16?section=

  6. Paul Seamans

    Great link Jerry.