PIERRE, S.D. (KELO) — State law doesn’t allow a circuit judge to take action regarding a permitting decision made by a drainage commission, unless the county commission actually made the decision, according to the South Dakota Supreme Court.
In a somewhat confusing but unanimous decision publicly released Thursday, the justices said Circuit Judge Patrick Smith didn’t have jurisdiction over a permitting decision made by the Davison County Drainage Commission.
The drainage commission granted permits to John Millan to install drain tile on his farmland in Davison County. A downstream neighbor, Kenneth Hostler, opposed the plan at the drainage commission’s public hearing and then appealed the decision to circuit court.
Judge Smith reversed the drainage commission’s decision and found in favor of the neighbor, Hostler. The judge said that the drainage commission abused its discretion in granting the permits because the landowner, Millan, didn’t produce evidence of compliance with the county’s drainage ordinances.
Millan in turn appealed the circuit court’s decision and the Supreme Court has now ruled in Millan’s favor. Justice Janine Kern said that the state law Hostler used to challenge the permits applied specifically to a drainage conflict, rather than a drainage permitting decision.
“We are unable to find, and Hostler has not identified, an instance in which this statute has been used to appeal the permitting decision of a drainage commission directly to a circuit court,” she wrote.
Justice Kern also drew a key distinction regarding Hostler’s attempt to use another state law that allows decisions by county commissions to be appealed to circuit court. She said that law didn’t apply in this case. Her reason: The drainage commission members weren’t the same as the Davison County Commission.
The drainage commission had two county commissioners and five others with special knowledge of the county’s drainage conditions.
Justice Kern acknowledged that the South Dakota Supreme Court in a 2020 drainage decision had allowed the county-commission law to be used. But in that instance, she noted, the county commission was sitting as the drainage commission.
“The circuit court did not have jurisdiction to hear this appeal and did not have authority to grant the declaratory relief sought,” she concluded.