Posted by: Patricia Salkin | December 29, 2015

SD Supreme Court Holds Board Had Authority to Consider Whether to Rescind Resolution Approving Petroleum Contaminated Soil Farm

High Plains Resources, LLC, sought a writ of prohibition alleging that the Fall River County Board of Commissioners, acted outside its authority by rescinding Resolution 2014–09, which approved High Plains’ proposed petroleum contaminated soil farm. It further alleged that a referral of a similar, subsequently enacted Resolution 2014–16 would be of no legal effect. The circuit court agreed and found that High Plains did not have a plain, speedy, and adequate remedy in the course of law. The court issued a writ setting aside the rescission of Resolution 2014–09 and prohibiting the ballots on the referendum election on the second Resolution 2014–16 from being counted.

The Board first asserted that High Plains had a remedy by way of direct appeal of the Board’s decision, since SDCL 7–8–27 provides a right to appeal “from all decisions of the board of county commissioners upon matters properly before it … by any person aggrieved.” High Plains contended that the conditions necessary to rescind the resolution under SDCL 34A–6–103 were not met. However, the court found that the statute did not require that the conditions under SDCL 34A–6–103 be proven to exist before the Board may consider rescission (that a significant change in the size, purpose, or location of the proposed facility has occurred). Because the Board had authority to rescind county approval of the solid waste facility when the two conditions under SDCL 34A–6–103 were met, the court held that the Board must be allowed to deliberate whether those conditions have been met.

Furthermore, under SDCL 7–8–27, High Plains had a right to appeal the Board’s decision to rescind Resolution No.2014–09; however, High Plains did not appeal the Board’s decision within the statutory time and the rescission of Resolution 2014–09 became effective 20 days after publication. Since this provided a plain, speedy, and adequate remedy in the ordinary course of law, the circuit court erred by granting the writ of prohibition based on the Board’s allegedly improper rescission. Accordingly, because this remedy precluded the “extraordinary remedy” of a writ of prohibition, the court reversed and remanded to the circuit court with instruction to quash the writ.

High Plains Resources, LLC v Falls River County Board of Commissioners, 2015 WL 8482740 (SD 12/9/2015)

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