BELLE FOURCHE, S.D. (KELO) — A petition circulated by a group called ‘Concerned Citizens of Butte County’ (CCBC) has failed in its goal to remove 4/5ths of the Butte County Commission from office.
According to a record of the complaint submitted to Butte County State’s Attorney LeEllen McCartney, the group accused commissioners Stan Harms, James Ager, Frank Walton and Karrol Hermann of gross negligence and gross partiality with respect to their handling of matters relating to medical marijuana in the county.
“These are just a few infractions that we have documented over the past months,” reads the unsigned complaint. “For these infractions, we believe that the county commissioners listed should be removed from office and a special election held during the 2024 election for their replacements.”
The complaint, itself unsigned, was accompanied by four pages of 120 signatures on petitions circulated by Dale Simanton, of Newell, Travis Ismay, also of Newell, and Katie Hoffmann, of Belle Fourche.
Of these 120 signatures, the State’s Attorney’s Office was able to verify at 110 were valid resident taxpayer signatures.
The complaints, listed below in bold italics, were categorically rejected by State’s Attorney McCartney, who found no cause to remove the commissioners. McCartney’s rebuttal to each claim will also be outlined below.
Note: Due to poor formatting and composition of the complaint by CCBC, many of the complaints actually contain more than one individual complaint. To maintain context, these complaints are lumped together as they appeared in the petition. Spelling, capitalization and punctuation errors within the complaint are also left unchanged.
Allegations of negligence
CCBC gross negligence allegation 1: “Total lack of research constructing their ordinance, resulting in four ordinances being adopted in less than a year.“
“The first allegation asserts gross negligence in two respects, failure to conduct research and passage of four medical cannabis ordinances in less than a year. The first assertion is factually incorrect,” writes McCartney.
McCartney goes on to explain that the state has allowed local governments, including county commissions, to enact ordinances to regulate time, place, manner, and number of medical cannabis facilities, if those rules do not conflict with the statute.
While McCartney notes that the commission did study and research the issue, they did not hire an independent research team to conduct a formalized study. “They had no duty to do so,” she wrote. Instead, the commission asked the State’s Attorney at the time to research regulations in other jurisdictions. That research was done and then presented to the commission.
“The second assertion, that the County Commission passed four medical cannabis ordinances in a year is mostly correct. However, doing so does not constitute gross negligence or nonfeasance as those terms are defined,” wrote McCartney.
At the time that the first ordinance was adopted, the state was still sorting out their administrative rule. McCartney points out that at that time, there was an idea that if counties didn’t have a framework for regulation in place, the state Department of Health (DOH) could issue licenses for facilities without reference to ‘intended’ local ordinances.
“In fact,” wrote McCartney, “the attorney advising the Department of Health on medical cannabis informed our then-State’s Attorney that the County should enact a Temporary Ordinance as a placeholder to demonstrate the County’s intention to regulate what we could regulate under the statute.”
The commission passed such a placeholder ordinance, and also passed another ordinance on the matter at the same time. While McCartney notes that two ordinances at once may have been ‘overkill’ it is not evidence of either gross neglect or a refusal to do something the Commission had a duty to do.”
The second ordinance was later amended twice, once after the DOH implemented rules that warranted a change to the county ordinance, and again later in response to concerns raised by the public.
This amounts not to 4 ordinances in one year, but rather two ordinances, one of which was later twice amended.
CCBC gross negligence allegation 2: “Grandfathering in marijuana establishments under ordinance 2021-02 when they had not had final approval. Meanwhile, they had drafted a new ordinance that was being adopted that would put the marijuana establishments in violation of the amended ordinance 2021-02. Resulting in the county commissioners, giving a variance that basically nullified their ordinance.”
“First, this allegation is factually incorrect,” begins McCartney. “There were only two applications, one for a cultivation facility and one for a manufacturing facility that were received prior to the 19 November 2021 effective date of the Amended Ordinance 2021-02. Both were received on 15 November 2021. All other applications for medical cannabis facility permits were received after the Amended Ordinance’s effective date and processed under the provisions in effect after 19 November 2021.”
McCartney explains that in all, three applications were processed and approved prior to the effective date of the 2nd amended ordinance, and that the remaining seven were received prior to the effective date of the of the 2nd amended ordinance, and approved after the effective date.
“Even though the Second Amended Ordinance was effective by the time these applications were approved, it was appropriate to continue to process the applications under the rules established at the time the application was submitted. This “grandfathering” is appropriate, so as not to change the rules in the middle of the process as a matter of fairness and due process,” McCartney wrote.
Gross negligence allegation 3: “Completely ignoring citizens of their county with concerns of these marijuana establishments impact on their community. Many concerned citizens attended nearly every county commissioner meeting for the last 20 months trying to warn and plead with the county commissioners to at least curb the amount of establishments they were approving with no avail. These county commissioners approved, 14 marijuana establishments in Butte County before the state had even finalized a state law.”
McCartney wrote in her review that this complaint too was not factually correct.
“The Butte County Commission, for example, reduced the number of medical cannabis cultivation facilities from an unlimited number to five, based on citizen concerns,” McCartney wrote. “The Commission also instituted a public hearing as a requirement for medical cannabis facility licensing in response to citizen concerns in the Second Amended Ordinance.”
McCartney went on to explain that while the Commission has not undertaken every action that certain citizen’s groups advocate, they do listen. “A difference of opinion does not constitute gross negligence or nonfeasance,” she added.
As for the allegation that the commission approved 14 establishments before the state had finalized a law, this too is false.
“The State law and the Administrative Rules regulating medical cannabis were effective well before the time Butte County began accepting or approving medical cannabis establishments,” wrote McCartney, adding “the County Commission did not approve 14 medical marijuana establishments as alleged in the complaint — there are six approved cultivation facilities, two approved dispensaries, and two approved manufacturing facilities, for a total of 10 approved medical cannabis facilities in Butte County.”
CCBC gross negligence allegation 4: “Absolutely no environmental impact study was done for surrounding farms, irrigation canals, waterways, rivers, creeks or wetlands.”
This, said McCartney, is actually true. The commission did not conduct any environmental impact studies. This is because no such studies are required.
“The Commission did not have a duty to order environmental studies prior to approving either medical cannabis ordinances or establishments under that ordinance,” wrote McCartney. “There is no malfeasance, nonfeasance, or gross negligence from their failure to do so.”
CCBC gross negligence allegation 5: “Renewal of permits without verification that the marijuana establishments were compliant with State law 34-20G or Butte County amended ordinance 2021-2.”
“Again, this is not factually correct,” wrote McCartney. “Under the Second Amended Ordinance, all permit holders must certify that they are fully compliant with all applicable State requirements.”
That the commission was (2) “grandfathering in marijuana establishments under ordinance 2021-02 when they had not had final approval,” and that new ordinances drafted put marijuana establishments in violation of the amended ordinance, resulting in the commissioner giving a variance that nullified the ordinance,
That the commission was “completely ignoring citizens,” and their concerns over marijuana, and that the “commissioners approved, (sic) 14 marijuana establishments in Butte County before the state had even finalized a state law,”
That “absolutely no environmental impact study was done for surrounding farms, irrigation canals, waterways, rivers, creeks or wetlands,”
That there was a “renewal of permits without verification that the marijuana establishments were compliant with State law,” or Butte County ordinance.
Allegations of partiality
CCBC gross partiality allegation 1: “Striking minutes from the record of expert witnesses testimony about the impact of marijuana establishments in Butte County.”
McCartney, reviewing audio recordings provided by CCBC, found no partiality in the interaction, noting that the testimony specified was not ‘expert testimony’ as advertised by the group, but rather simply public comments from a citizen during the public comment period of the meeting.
“After listening to the referenced audio recording, the reason for not approving the minutes as written was twofold,” wrote McCartney. “There was an objection to including a lengthy verbatim recitation of opinions, as opposed to fact, as well as an objection to the cost of publishing lengthy minutes in the paper. Nothing about this objection demonstrates gross partiality toward one party or side of an issue over the other.”
McCartney went on to point out that meeting minutes are meant to record actions taken by the committee, not to record all of what was said in the meeting.
CCBC gross partiality allegation 2: “Illegal removal of a citizen during public comment and attempted removal of citizens recording device.”
Again referencing the video recording provided by CCBC, McCartney noted that the citizen was properly removed after he disrupted the meeting, inserting himself into the public comment period of another citizen.
“Citizens have the First Amendment right to speak to their elected representatives. However, citizens do not have a right to disrupt a meeting,” wrote McCartney. “The member who was removed interrupted another citizen’s public comment and then called the County Commissioners “idiots,” and was promptly removed for disrupting the meeting. Doing so was a response to the citizen’s conduct and not evidence of gross partiality.”
As for the complaint that there was an attempt to remove a citizen’s recording device, McCartney noted that the continued video footage was evidence that the device was not removed, and that the point therefor was moot.
CCBC gross partiality allegation 3: “During public comment, at the December 20, 2022 commissioner meeting, the entire room was told that we were to adhere strictly to the rules or there would be “consequences”. The anti-marijuana citizens kept all of our comments under five minutes. marijuana proponent had over minutes of public comnment. Without a single warning from any of the county commissioners concerning going over there time.”
“The County Commission has a duty and a responsibility to allow for public comment under SDCL 1-25-1, however the statute also allows the Commission to use their discretion to limit the public comment period,” wrote McCartney.
Beyond the commission’s legal right to use their own discretion to limit public comment periods, McCartney also noted that circumstances at the time likely played a role.
“In this meeting, there were several speakers, including one who threatened to “kick the ass” of the Commission Chair, causing upset and disruption,” wrote McCartney. “It is unsurprising that the Commission Chair did not turn on the timer or properly note the time to limit remarks for the subsequent speaker.”
While McCartney said that not limiting time for the speaker was a mistake, she said it did not rise to the level of demonstrable gross partiality, adding that at following meetings, citizens with anti-marijuana views had been allowed to speak for longer than the allotted time.
CCBC gross partiality allegation 4: “Granting variances to the marijuana establishments, when these establishments were obviously in violation of amended ordinance 2021-2. 10.”
“In Butte County there are 10 medical cannabis facilities which are regulated by the Second Amended Ordinance 2022-02,” McCartney explained. “This amended ordinance went into effect on 6 August 2022, and contained an amended provision that included residences in the provision requiring a 1,000-foot set-back from medical cannabis establishments.”
Prior to being amended, the ordinance at hand did not include residences in the provision requiring a 1,000-foot setback.
McCartney writes that there have been two applications for permit renewal (with a third pending) where existing medial cannabis facilities would not be able to meet this setback requirement.
“As a result, application of this setback requirement to existing, permitted facilities would create an extreme hardship,” wrote McCartney. Due to this hardship, the decision was made to approve the two requests for variance.
CCBC gross partiality allegation 5: “Stan Harms on May 2, 2023 during a County Commissioner meeting refused to allow a citizen of butte county that had been previously put on the agenda by the auditor, to ask a series of questions that the commissioners had reviewed before the meeting concerning their marijuana ordinance.”
In her review, McCartney explained what an agenda is, and how it works, noting that the purpose of the agenda is to inform the public about the business the County Commission will consider at the date, time, and place listed on the agenda.
“Chairs of Boards typically have responsibility to set a meeting agenda, although the County Commission votes to approve the agenda at the beginning of each meeting,” McCartney explained, adding that while the First Amendment prevents the government from regulating private speech, it does not regulate government speech.
While citizens can request that their questions or statements be added to an agenda, the Chair is not required to allow it.
In summary, McCartney found within CCBC’s complaints no reasonable cause to remove the named members of the commission.