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, ruling, Lake 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.