By Curt Nettinga
A request to dissolve a writ of prohibition and allow Fall River County residents’ votes to be counted on a proposed soil remediation farm near Edgemont was denied by Judge Robert A. Mandel on Friday.
High Plains Resources, LLC, had filed the writ in September, alleging that actions taken by the Fall River County Commission at a June 19 meeting were improper and that votes on a referendum arising from a resolution approved at that meeting should not be counted.
So now, the issue is on the ballot and people will be allowed to vote on the question at hand.
What is not clear as of yet, however, is whether the votes will be counted.
At the March 25 County Commission agenda this past spring, Keith Andersen of Andersen Engineering was scheduled to speak on behalf of a “Plat; Resolution for Land Farm General Permit.” Following a brief discussion at that meeting in which Andersen and Kerry Barker, a brother of Kenneth and another partner in the LLC, shared information on how the “petroleum contaminated soil farm would operate.” The commission approved resolution, No. 2014-09 at that meeting.
A short time afterward, Hot Springs resident Ed Harvey filed an objection with the state’s attorney, under the open meetings statute, stating that the description on the agenda did not fully disclose the scope of the planned project.
At subsequent commission meeting on June 4, additional discussion both for and opposed to a ‘soil farm’ was held at the State Veterans Home, with no decision coming from that meeting.
Jim Wendte, Solid Waste Secretary for the S.D. Department of Environment and Natural Resources explained the permitting process that would be required for the soil farm.
On June 19, after significant discussion, the commission voted to rescind Resolution 2014-09 and later in the meeting approved Resolution 2014-16, a virtually identical document. This action was referred by petition and those petitions were then accepted by the commission and the matter was set for a public vote.
The writ of prohibition filed by High Plains Resources stated that the rescission of 2014-09 by the commission should be set aside, rendering moot the referred resolution 2014-16.
Jim Sword, Fall River County State’s Attorney argued that the writ was being improperly utilized in this case.
“A writ of prohibition is an extreme measure, to be used when other means to challenge a ruling are not available,” Sword said. “In this case there are other means.”
Kenneth Barker, attorney for and a partner in High Plains Resources, argued that the writ was proper and that the commission should not have rescinded its resolution.
Judge Mandel ruled at that point in the hearing that the request to dissolve the writ would be denied, to which Sword quickly objected.
“Your honor I was arguing the law of the case thus far,” he said. “I have witnesses to call on this matter.”
Harvey testified that he had been at the March 25 meeting, but didn’t realize what the resolution that was passed at the meeting entailed until reading it in the county minutes when published later.
“I did not see or hear the resolution at that (March 25) meeting,” Harvey stated.
He said that he was not present at subsequent meetings.
Auditor Sue Ganje, who produces the agenda for the meetings said she recalled talking with Andersen about the resolution but did not recall specific details, including a possible site visit.
Commissioner Joe Allen testified that although he is on record as making the motion to approve, he believed that the commission was voting on a plat for Andersen Engineering.
Keith Andersen testified as to his discussion with the commission on March 25, and said that the resolution of approval from the commission was the first step of the permitting process.
Andersen stated that he remembered Ganje saying that the commission may want a site visit, which he said he would welcome.
He said under cross examination from Sword that to date the permit for the contaminated soil farm has not be filed with DENR.
“I believe that the permit will be sbmitted,” Andersen told Sword.
“The facts are that things were camouflaged here,” Sword argued. “This is a contaminated soil site, but the agenda stated land farm general permit. They have no idea what is coming into this site and the people should be allowed to vote on it.”
Mandel stood by his mid-hearing ruling, stating that the only thing accomplished by rescinding one resolution and approving an identical one was “Time was re-started on the referendum. The first resolution could not be rescinded. This is a simple matter of law.”
Sword asked for an expedited time for Kenneth Barker to write and submit his findings of law and for his (Sword’s) response, “so that we can appeal,” an appeal that deputy state’s attorney Pat Ginsbach said later Friday night, was already being worked on.