Summary of a Recent
Judicial Development in
Animal Feeding Operations

Board of Commission's Decision to Issue CAFO Permit is Deemed
Legislative and Subject to Referendum Vote

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Kirschenman v. Hutchinson County Board of Commissioners, 656 N.W.2d 330 (S.D. 2003), the Supreme Court of South Dakota reversed the circuit court's ruling that denied the appellant citizen's writ of mandamus petition and held that the decision of the County Board of Commissioners (Board) was administrative in nature, and therefore not reviewable. The Supreme Court of South Dakota held that the Board's decision was legislative in nature, and therefore subject to a referendum petition, and the citizen was entitled to a writ of mandamus.

Background

The Board granted Meyer a conditional use permit to construct a hog CAFO facility. Id. at 332. After approval of the CAFO permit, county citizens filed a referendum petition with the county auditor to contest its issuance. Id. The Board rejected the petition, and the auditor concurred, because the Board determined that its decision to grant the CAFO permit was administrative rather than legislative in nature. Id. According to South Dakota Codified Law 7-18A-15.1, administrative determinations are not referable. Id.

Arguments

The citizens raised two issues on appeal: (1) whether the Board's granting of a conditional use permit was a legislative act and subject to referendum, and (2) whether the citizens were entitled to a writ of mandamus to compel the Board to place the referendum measure on the ballot. Id.

The Board asserted that the granting of the CAFO permit was administrative in nature and that the citizens' action for a writ of mandamus was precluded by the exclusive remedy provisions of South Dakota Codified Laws 7-8-27 and 7-8-32. Id.

Analysis and Holdings

In order to compel the Board to submit its CAFO permit decision for a referendum vote, the court stated that the citizens must have a clear legal right to performance of the specific duty sought to be compelled and the Board must have a definite legal obligation to perform the duty. Id. In South Dakota, citizens have the right to refer legislative actions to a public vote; however, administrative decisions are not subject to the referendum process. Id. The South Dakota legislature defined a legislative decision as one that "enacts a permanent law or lays down a rule of conduct or course of policy for the guidance of citizens or their officers." Id. at 332-33. In kind, the legislature defined an administrative decision as "one that merely puts into execution a plan already adopted by the governing body itself or by the [l]egislature." Id. at 333. The court stated that when deciphering whether a decision is administrative or legislative, on balance, it applies a liberal rule of construction permitting citizens to exercise their powers of referendum. Id. at 333.

Because the Board retained complete discretion to determine whether to grant or deny particular conditional use permits, and residents had no notice of the CAFO facility prior to the Board's vote, the court held that the Board's action was legislative and, therefore, subject to referendum. Id. As for the writ of mandamus, the court held the referendum power is reserved to the people of South Dakota by the South Dakota Constitution, and the Constitution trumps conflicting statutes. Id. The South Dakota Constitution gave citizens the clear right necessary to entitle them to a writ of mandamus and compel the county auditor to place the Board's decision before the county voters. Id.

The case was decided on January 8, 2003.