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South Dakota’s version of Alice in Wonderland

Posted by David Ganje - April 19th, 2017

What are non-meandered water bodies in South Dakota? In Alice in Wonderland the mock turtle says, “Well, I never heard it before; but it sounds uncommon nonsense.”  Non-meandered is a surveying and legal term for what are called temporary water bodies. The term in basic concept means waters that are ‘shallow or likely in time to dry up.’ And, of course time is a relative concept for sure. In 2004 the South Dakota Supreme Court in the Parks case declared that such water bodies were public water bodies even though the land underneath, the lake beds, could remain privately held property. Importantly, Parks held that all waters including non-meandered waters are public property. Yes, the law can be schizophrenic. Current law pits land rights against water rights and creates a legal no-mans-land.

I was not involved in the Parks case, and on reviewing the decision I was not convinced the parties in the case presented the best arguments or even undertook the best legal strategy. I did nevertheless use this case as an illustrative case when I taught a law class a while back. The case is an example of how complicated even natural resources law can be when the two legal concepts meet. We have under the Parks decision schizophrenic property claims: one granting public property rights to the water and one granting private property rights to the underlying and surrounding land. The landowners in Parks received no remedy from the Court which deferred the real problem to state government.

Modern medicine has had good success in treating those diagnosed with schizophrenia. Such success is not the case concerning the legal schizophrenia I describe in this article. In Parks the Supreme Court said that unresolved issues of management of these public water bodies should be taken care of by state government. The Court pretty much directed state government to do something about it. That’s a tall request in a short world. The state Game, Fish and Parks three times proposed legislation to the South Dakota legislature in an attempt to cure this legal schizophrenia. All efforts presented to the legislature have been to no avail. One should not expect the inmates in bedlam, that is state legislators, to recognize there might be a problem. I may have maligned the wrong party by calling the law (as an institution) schizophrenic. It strikes me that the legislature needs therapy.

In 2014 private landowners, seeing no relief in sight went back to court. I guess the wise principal of once burned twice shy is asking too much of those who exercise too much faith. Several landowners filed a new lawsuit claiming these public water bodies are misused by outdoor enthusiasts. More particularly landowners in the lawsuit claimed that outdoor enthusiasts were ‘firing guns, blaring music, operating loud machinery, getting drunk, littering and so forth.’ To me this sounds like the bar scene in Aberdeen a few years ago. Yet even so, I fully understand the frustration of the complaining landowners. Management of these newly declared public waters is necessary. Landowners optimism in seeking relief in the courts was however what we should call blind faith. A full and complete remedy did not occur. In this second court go around, the Supreme Court stated, “. . . until the Legislature acts, neither the public nor the Landowners have a superior right to use the waters and ice overlying the Landowners’ private property.”  Hunting and fishing is integral to the economy. Game, Fish and Parks in a recent report stated that outdoor activities have a significant effect on the state “generating nearly $1.9 billion dollars in economic activity” in 2016. So, alas, legislators not wishing to deport themselves as thoughtful leaders have dutifully ignored this legal problem. Welcome to Alice in Wonderland.

David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law.

South Dakota Drainage Problems

Posted by David Ganje - February 17th, 2017

Many are searching for a solution to the continuing problems and conflicts on the subject of water drainage in South Dakota. As reported in my previous articles, county commissioners in the state have fundamental authority over these issues. Unfortunately, not all counties in the state have faced theses legal responsibilities head-on.  As of 2013 it could be reported however that one particular county has it right, and can act as a model for others. Yankton County pinpointed the specific water drainage issues affecting their county, and determined how to resolve them.  Perhaps these steps will inspire other counties to work as diligently.

Based on the observations and conclusions of Patrick Garrity, the successful and reputable Yankton County official in charge of the drainage program for the county, the first act the county took was to step back and analyze how water drainage problems, along with the little-heeded laws and regulations, affect the  county.  To do this, Yankton County used a wetland conservation service to analyze its 500 square miles of land.  The analysts found that almost half of Yankton County falls under the category of wetland, and had a solid potential for tile drainage systems in order to improve crop production.  When faced with the knowledge of how much tile drainage could improve the county’s agricultural lands and economy, the Planning and Zoning Committee knew they had to act on this information.

Before discussing the Yankton ‘miracle’ further, I will say a few words about countywide comprehensive plans.  A “comprehensive plan” is a county legislated plan required by South Dakota law for each county.  The plan must be implemented prior to creating general zoning and water drainage ordinances. A comprehensive plan is a document that describes in words, and may illustrate by maps, plats, charts, and other descriptive matter; the goals, policies, and objectives of the county board to interrelate all functional and natural systems and activities. Without a plan, zoning ordinances, including drainage ordinances, are invalid and unenforceable. The South Dakota Supreme Court has spoken and pretty much said, ‘Hey, you need a plan.’ Nevertheless, few counties have listened.  To paraphrase what the Supreme Court said:  A county commission has only those powers as are expressly conferred upon it by statute.  With regard to water drainage problems, the power of county commissions to adopt ordinances is contained in a South Dakota specific planning statute:  ‘For the purpose of promoting health, safety, or the general welfare of the county the board may adopt an ordinance to regulate . . .  the location and use of buildings, flood plain, or other purposes.’  But a county must first adopt a comprehensive plan before adopting water drainage ordinances; it is impossible to adopt an ordinance implementing a required comprehensive plan if that plan, the first required step, does not exist.  The first watchword to success in water drainage is a comprehensive plan.

Now let us observe the experience of Yankton County. Previously, the drainage commission of Yankton County used permits to decide drainage issues, mainly for economic reasons; issuing permits was a lot cheaper than having the issue settled in court.  However, there were several problems with the commission’s previous system.  First, it was terribly informal – all a farmer had to do to apply for a permit was state what they wanted to do, where, and roughly how.  In most cases, these inquiries did not go further unless someone contested the permit application.  Second, due to low application criterion, the drainage board often ran into problems by granting permits to those who did not use them properly.  Because of these problems, it was evident that change was needed.

To solve these issues, Yankton County held meetings to discuss the problem and possible solutions.  The county formed a commission of experts from all sides; including those who opposed tile drainage, and those who supported it, to study the problems.  The commission considered each viewpoint and each professional opinion.  The commission met once a month for 18 months, and succeeded in enacting an effective drainage ordinance.

The heart of Yankton County’s new, and effective, drainage ordinance had its roots in reestablishing the parameters under which the reestablished Yankton Drainage Board would base their findings and decisions.  Specifically, they referenced the National Resource Conservation Service’s (NRCS) soil conservation handbook to create a more concrete and specific basis for allowing drainage permits.  This resulted in more explicit guidelines and standards for the board to follow.  This is what I call good baseline guidance and management.

The final step is to use concrete facts and evidence in the county’s application process to make decisions.  As Mr. Garrity stated, “You cannot create a finding from an emotional standpoint,” meaning that concrete evidence and specific examples are required when contesting or offering ideas.  By using concrete facts and evidence, the county is better able to make productive decisions, rather than simply arguing over their own personal opinions; an issue many counties today are facing.

Yankton County has also employed the use of the most current technology and systems available, such as LiDAR.  LiDAR stands for Light Detection and Ranging; it is an optical sensing technology that can measure the distance between properties and can more definitely draw property lines. Therefore, LiDAR can solve many of the problems associated with water drainage systems.  The technology’s outstanding accuracy gives the Drainage Board definitive facts, and has made a huge difference in how decisions are made.

By following these steps, Yankton County has been able to enact effective water drainage laws.  They have instilled more confidence in the board by giving them specific criteria to follow, and provided solid facts on which to base every decision.  In addition, by involving commissioners from different backgrounds and of multiple opinions, they have guaranteed that the decisions are not only best for everyone, but also just.  Yankton is also promoting education on this subject, so more county residents can understand the problem and work to implement the solution.  As of 2013 Yankton County was a model for getting water drainage right.

Author:   David Ganje.   David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law.

Wetlands mismanagement – American style

Posted by David Ganje - February 15th, 2017

Wetlands play a role in the ecosystem and provide benefits for both people and wildlife. Society’s idea of wetlands management includes protecting water quality, storing floodwaters, retaining groundwater during dry periods, and providing food. Wetlands are also a source of biodiversity and serve as a habitat for species of fish and wildlife. It is estimated that one hundred years ago, the U.S. had over 221 million acres of wetlands. Today, the number is 107.7 million acres. The decline in the wetlands is linked, in part, to modern agricultural production. The government estimates that there are 6.4 million acres of wetlands in the prairie pothole region of South Dakota, North Dakota, Minnesota and Iowa. While I wrote about current languishing federal legislation addressing wetlands in a prior opinion piece, this article discusses the bureaucratic management of wetlands by the USDA.

The U.S. is not the old super-bureaucratic Soviet Union; nevertheless, the U.S. has a myriad of federal bureaucratic agencies, departments, services, divisions and offices, particularly within the USDA. For the convenience of the reader (and myself) I refer to all USDA related offices or divisions as simply ‘USDA’ instead of using the alphabet soup abbreviation for the particular office within the USDA.

Let me set the stage. The USDA has been involved in the wetlands management since 1977. Farmers, ranchers and landowners are incentivized to preserve the wetlands on their property by receiving government benefits. Beginning in 1990 and continuing through 1996, the USDA created maps to show wetlands determinations, or more specifically what was and was not a wetland. So that we don’t get lost in the timeline, I refer to the maps created during this time as “pre-1996 maps.” In 1996, the USDA completed several internal studies and concluded that the pre-1996 maps were not accurate and should not be used. Between 1996 and 2013, the USDA moved to a more comprehensive system to determine what is and isn’t a wetland. This new system was more accurate than the pre-1996 maps because it relied on several different techniques, such as onsite evaluations, maps, aerial photography, and soil samples.

Now here is the kicker. In 2013 the agency stopped using onsite evaluations, aerial photography and soil samples and reverted back to issuing wetlands determinations using the inadequate pre-1996 maps. Thus, in 2013 the pre-1996 maps were to be the ‘new’ method of making wetlands determinations. Alas, these older maps sometimes underestimate the amount of wetlands on a piece of property. For example, by using an inaccurate pre-1996 map the agency caused the reduction of wetland acreage in North Dakota by nearly 75% on 13 tracts. In another example, a 2010 map showed 34 acres of wetland on a tract of land but the pre-1996 map showed that the tract only had 2.5 acres. Since the USDA approved a landowner’s petition, the producer drained 31.5 acres of wetlands without being penalized with the loss of farm benefits. Remember the agency first asserted that the pre-1996 maps were unacceptable in 1996, yet they repeatedly reaffirmed this position over the years, most recently in a 2012 report. In 2013 the agency reversed this position so it could use the pre-1996 maps. Curiously, during this confusing time South Dakota USDA officials decided, on their own, not to follow their own USDA directives. USDA bumbling has created interstate chaos in wetlands management. The lack of uniformity in applying the rules caused complaints. I have yet to deal with a landowner who has experienced uniform treatment under the wetlands program.

Adding to the bumbling, senior officials finally realized that there was an inconsistency in the way wetlands determinations are decided between different states. In 2013 the USDA stated it would “clarify” its new decision-making process. It did not. The agency did not published anything on its official decision to revert back to the pre-1996 maps for over three years. And we were all taught that only families could be dysfunctional. This messy stew resulted in an Inspector General investigation and report.

Bumbling. Now I admit to bumbling some of my games of chess, however that is not the question at hand. But to the point: we all hold a low opinion of the stupidity of a bumbling government agency, and yet we all know we gotta have government. Just try to live without the security and benefits of a government – you will need to be a pretty good shot as well as a full time prepper, and yet you still won’t have a long shelf life.

So, let’s figure out what to do on the issue of wetlands management. The USDA has blown it. It is now incumbent upon USDA to get its act together and quickly. We must remember that the individual landowner does not always directly get the eco-benefits and the financial advantage by the imposition of wetlands management upon his land. It can happen, that is, the USDA may determine that private property should be regulated for the protection of a particular body of water or a species. Such action does not benefit the immediate landowner but rather benefits the environment and is the country’s form of stewardship of the land. We will have to live with a rational management of wetlands or choose to become the Wild West of environmental management as the Chinese tried for about 30 years. Go ask them now if that was a good idea.

The USDA Inspector General last month issued his critical report stating the USDA should, “Issue official guidance reinforcing correct and current rules and clarifying procedures for making wetland determinations…, including the status of pre-1996 determinations.” The USDA accepted the Inspector General’s criticism and declared it would provide clarification and specific guidance to evaluate the status of prior determinations. It’s a start. The USDA will need to learn how to chew gum and walk at the same time; it must both fix yesterday’s problems as well as manage wetlands rationally going forward.

Wetlands management may be a problem in which ‘institutional bypass’ is in order. In this case by institutional bypass I mean contracting with private enterprise to take care of the backlog of problems and create a fair and streamlined access to wetland determinations.

David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law.

U.S. Supreme Court declines to hear S.D. farmer’s wetlands case

Posted by David Ganje - January 12th, 2017

On Monday, Jan. 9, The U. S. Supreme Court denied the Petition of a Miner County South Dakota farm couple who were fighting a USDA wetlands designation. USDA enforces rules in which it declares as “wetlands” farmland that has been converted by a farmer from wetlands to arable working land. When such a federal designation is made the farmer loses his right to participate in USDA programs and benefits. Under USDA maps about two thirds of North Dakota, one half of South Dakota and the western part of Minnesota is covered by prairie potholes and wetlands.

The interest group representing the Miner County farmers had called this so-called swampbuster action by the department of agriculture a “phony wetlands designation.” The group’s advocacy on behalf of the Miner County farmers was however weak. The group did not use any experts in its challenge to the designation and appeared uninformed on the methods used by the USDA to designate the Miner County land as wetlands.

In the government’s brief before the Supreme Court the government pointed out that the petitioners neither cross-examined the USDA witness nor offered a competing definition of a local area to use as a comparison site. The landowners separately argued in their Petition that USDA violated the US Constitution by selecting a comparable wetlands site without giving petitioners notice and an opportunity to be heard. However the landowners had not presented this argument in the lower courts.

The Miner County couple’s challenge was timely because of problems with the USDA wetlands process. Nevertheless the landowner’s argument was not based on a strong set of facts. But because of the continuing problems with USDA rules on wetlands designations several congressman introduced a bill amending the swampbuster law.

This wetlands bill, introduced in June 2016, was not acted upon and has had no hearings in Congress. In addition, the new bill was not actively pushed by its sponsors. The proposed amendments have merit and should be actively supported by agriculture interest groups. The proposed reforms do not prejudice proper environmental stewardship of the land. This bill should have bipartisan support. The bill, although now caught in no-man’s-land because of a lack of interest, would require the USDA to make a decision on a piece of property as either wetlands or not wetlands within 60 days of noticing the landowner. The proposed bill also allows for quicker and easier access to federal courts without going through a lot of bureaucratic hearings. The amendments state that the USDA has the burden of proof on any claim that the property in question is a wetlands. The proposed amendments also give the landowner the right to obtain technical assistance early on in any process in order to timely oppose a claim of wetland delineation.

A closer look at North Dakota’s condemnation law

Posted by David Ganje - December 27th, 2016

A closer look at North Dakota’s condemnation law

This is the second of two articles discussing eminent domain law in both South Dakota and North Dakota. This article will address several problems with North Dakota condemnation law.

The use of eminent domain (condemnation) is a modern legal problem. Condemnation is the taking of property for a public or, in some cases, private interest. Condemnation is a legally sanctioned sword. My argument is not that eminent domain as a concept is wrong, but that in its present state as a legal vehicle attempting to provide fairness, eminent domain is in need of repair on both sides. This law allows a governmental body — and a private business — to convert privately owned land to another use, often over the objections of the landowner. Traditionally in a legal taking a landowner receives “market value” for the land taken. This often includes money for reduction in agriculture output or for the loss of other productive use of the land.

Justice Sandra Day O’Connor famously said in her dissent to a private taking condemnation case, “The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.” One local North Dakota government official said it aptly regarding action to condemn property: it is better to look at condemnation through our local eyes rather than through the developers’ egos.

In my opinion, there are four notable problems with current North Dakota law:

1. While eminent domain makes sense under a public utility easement paradigm, how does this process apply when a pipeline easement on a landowner’s property is the “transportation vehicle” for a commodity? How does one calculate “fair market value” when millions of dollars’ worth of product are flowing across privately-held land? President elect Donald Trump said, “I want the Keystone pipeline, but the people of the United States should be given a piece, a significant piece of the profits.” North Dakota law does not take this into consideration. In fact, state law prohibits this. The law states that no benefit from the proposed improvement may be allowed in calculating a landowner’s compensation.

2. A land owner is not allowed to recover reasonable attorney’s fees if he appeals and does not prevail or if he applies for a new trial and does not receive greater compensation than awarded in the first trial. Why should the land owner be penalized for exercising his right to an appeal or to a new trial when the whole process of condemnation is involuntary in the first place? This lawsuit and claim is not “elective surgery” to the landowner. He is forced into the circumstances of condemnation.

3. In a federal condemnation, even if a landowner does not formally answer the condemnation lawsuit, the landowner may still present evidence of the value of his land and may participate in the distribution of awarded monies. North Dakota law does not provide for this.

4. Eminent Domain law is old law — too old. About half of the states still maintain that the property owner has the burden of proving value and proving the amount of compensation; this is ridiculous. Condemnation is not private litigation. It is a special legal right given to the condemnor to take land from another party. But North Dakota law requires that the burden of proof rests with the landowner to prove entitlement to compensation. This is also ridiculous. Rather than placing the burden of proof on the landowner who would often not prefer the forced taking, the law and the legal burden of proof should hold responsible the government or private party trying to take the land.

I am reminded of one of my tutors during my legal internship, who said something very memorable about the law while instructing me: “David, the law is a strange thing to citizens. They don’t pay much attention to it until it affects their property or their daughters.” The North Dakota Supreme Court acknowledges the dilemma in our society concerning the taking of someone else’s property. The Court stated that condemnation is, “Clear in theory but often cloudy in application.” A landowner in a condemnation case is not a party choosing elective surgery. Although the state has made progress in addressing fairness for surface owner’s, equity demands that more work be done.

David Ganje practices law in the area of natural resources, environmental and commercial law.

South Dakota’s Approach To Condemnation

Posted by David Ganje - December 2nd, 2016

The use of eminent domain (condemnation) is a modern legal problem. Condemnation is the taking of property for a public and in some cases a private interest. Condemnation is a legally sanctioned sword. My argument in this article is not that eminent domain as a concept is wrong. My argument is that in its present state, as a legal vehicle attempting to provide fairness, eminent domain is a lemon in need of repair on both sides. This law allows a governmental body – and a private business – to convert privately owned land to another use, often over the objections of the landowner. Traditionally in a legal taking a landowner receives “market value” for the land taken. This often includes money for reduction in agriculture output or for the loss of other productive use of the land.

While eminent domain makes sense under a public utility easement paradigm, how does this process apply when a pipeline easement on a landowner’s property is the “transportation vehicle” for a commodity? How does one calculate “fair market value” when millions of dollars’ worth of product are flowing across privately-held land? Candidate Trump said, “I want the Keystone pipeline, but the people of the United States should be given a piece, a significant piece of the profits.” South Dakota law does not take this into consideration. Condemnation of one’s land involves forced negotiation required by law, and sometimes involuntary litigation. Is a one-time payment for an easement fair compensation? Is the condemnor (developer or government agency) required to provide its plan of work and operations to the condemnee (property owner) so the owner can evaluate this information? This would create a fairer playing field in negotiations. South Dakota law does not provide for this. Should the landowner be granted his expenses and attorney’s fees in a trial and for an appeal if the final award given is greater than the last ‘offer’ made by the condemnor? Or if a mistrial is called which is not the fault of the landowner? South Dakota law does not provide for this. Is the condemnor required to provide written disclosure of its calculations and basis for a proposed offer for the property? South Dakota law does not provide for this. In a federal condemnation, even if a landowner does not formally answer the condemnation lawsuit the landowner may still present evidence of the value of his land and may participate in the distribution of awarded monies. South Dakota law does not provide for this.

The law of condemnation brings out a curious inconsistency in the character of the state. South Dakota is a strong property-rights and individual-rights state. Aside from the important and unique relationships of Indian reservations to the state and to the federal government, private property in South Dakota is a hallowed right. State laws are vigilant in protecting one’s real estate and other property from intrusion, reduction in value as well as protecting the right to use the property for any lawful purposes. The state Constitution, like the federal, directs that, “Private property shall not be taken for public use, or damaged, without just compensation. . .”

Thus we get to my puzzlement. South Dakota has done very little to modernize eminent domain laws. This is not a case of the emperor having no clothes. This is a case of the emperor having no vision. The takeaway is that state leaders have no appetite for changing the status quo.

In modern vernacular ‘trending’ means that which is currently popular in social media, however in common English it means that which is changing or developing in a certain direction. The word ‘trending’ applies to the painfully slow but observable changes in the law of eminent domain. Unfortunately these changes are not coming from South Dakota political leaders. The state’s recent passage of a voluntary mediation statute for condemnation cases does nothing to address the substantive changes needed.A national trend has started toward balancing the sacrifices a property owner makes when business or government does its eminent domain dance. Courts, and over time other state legislatures, will continue to correct the ills of eminent domain when it is used as a legal sword. South Dakota must cultivate a fairer system for the taking of property.

Brownfields: A Calculated Risk Missed by Tribes and South Dakota

Posted by David Ganje - December 2nd, 2016

The EPA defines a brownfield as “real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.” The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) mandated that the purchasers of property are liable for any contamination on this property regardless of when they acquired a site. However, CERCLA also created a defense known as the “innocent landowner defense” that can only be used if “appropriate due diligence” was conducted prior to the acquisition of the property. Appropriate due diligence has been exercised if an environmental site assessment (ESA), a thorough investigation of a site’s current and previous owners, has been prepared.

ESA’s have an average cost of about $4,000 for a small business acquisition and can vary depending on variety of factors specific to the job. The typical businesses that leave behind brownfields include gas stations, dry cleaners, railroads, oil refineries, liquid / chemical storage facilities, and steel / heavy manufacturing plants. Typical hazardous materials they leave behind include hydrocarbons, solvents, pesticides, heavy metals such as lead, and asbestos.

What is so dangerous about leaving these brownfields alone? Many of these brownfields are abandoned commercial properties and tend to be an eyesore in the community. Not only can this lead to decreased property values in surrounding neighborhoods, but the property can also pose serious health risks for new tenants and their neighbors.

Once a brownfield has been identified, the EPA provides two options for cleanup, revolving loan fund grants and cleanup grants. The purpose of revolving loan fund grants is to enable states, political subdivisions, and Native American tribes to make low interest loans to carryout cleanup activities at brownfields properties. Cleanup grants provide funding for a grant recipient to carry out cleanup activities at brownfields sites.

Since the cost of cleanup is considerable, the grants may provide several hundred thousand dollars towards the cost of cleanup. This money comes with strings attached, of course. Among other things, the costs are shared with the property owner, by at least 20 percent, and the brownfield site must be cleaned up within a three-year period.

Entities eligible for the EPA’s brownfield grants and loans include state, local and tribal governments; general purpose units of local government, land clearance authorities or other quasi-governmental entities; regional council or redevelopment agencies; states or legislatures; or nonprofit organizations. If you are not an eligible entity, you may still be able to receive assistance through your state or city.

In South Dakota, the agency that provides statewide brownfield assistance is the Department of Environment & Natural Resources (DENR). DENR receives funding from the EPA for assessments and cleanup and have discretion in how to allocate those funds. For example, a national hotel chain looking to redevelop a brownfield site in South Dakota would not be eligible to apply for assistance through the EPA directly. However, the hotel chain could contact DENR for assistance and DENR could use their funds to perform an ESA or help with the cleanup.

In 2015, Sioux Falls received an assessment grant for $400,000 from the EPA. In addition to performing site assessments, they plan to use the money to update the city’s brownfields site inventory, prioritize sites, plan for cleanups at priority sites, and perform community outreach activities. They, like DENR, also have discretion in performing assessments and have made assessments available to entities who would not be eligible to apply for grants from the EPA.

With these options available to assist with brownfield redevelopment, why do so many brownfields remain untouched in South Dakota? In the last 5 years the EPA only awarded four grants in South Dakota. They gave an assessment grant to Sioux Falls and cleanup grants to Standing Rock Sioux Tribe, Cheyenne River Sioux Tribe, and Lower Brule Sioux Tribe. This suggests that other entities are not aware of the grants available to them, they are dissuaded from applying, or they do not have the structure to run a brownfields program.

Since South Dakota is not small Rhode Island, which is about the size of Brown County, businesses and other eligible entities find it is more economical to buy available land than it is to redevelop a brownfield site. This misses the mark. A brownfield site is many times in an attractive location. A brownfield site is often close to business activity and transportation or the prior owner would not have developed it.

Although the grants and other forms of assistance are “competitive,” grants are awarded based on guidelines. The deadlines for applying for assessment and cleanup grants from the EPA is December 20, 2016, so it’s not too late.

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South Dakota wetlands case before the US Supreme Court

Posted by David Ganje - October 28th, 2016

Congress passed the Food Security Act of 1985. Under the Swampbuster provisions of this Act the USDA may make determinations as to whether certain lands qualify as wetlands and whether wetlands which have been manipulated qualify as converted wetlands. The Act passed during the Reagan Administration was written to oppose the conversion of wetlands into cropland. The Eight Circuit Court of Appeals has previously ruled that a person found to have converted wetlands into cropland may become ineligible to receive farm program payments from the federal government. Some of these wetlands are what I call cattail swamps. I spent part of my youth hunting in them.

Faced several years ago with a wetlands designation for part of their land, South Dakota farmers Arlen and Cindy Foster challenged the USDA’s decision that certain of Foster’s acreage was a wetlands. These bureaucratic proceedings took over five years. The USDA based its decision, in part, on a comparable wetlands site some 30 miles away from the Foster’s property in Miner County. Wetland regions in the U.S. include the Prairie Potholes of both North and South Dakota as well as other states.

When the Foster case was later ruled upon by the U.S. District Court for South Dakota, the Fosters were unable to provide the court with substantial evidence that the USDA wetlands decision-making process was wrong. The District Court said that “Plaintiffs (the Fosters) have not shown, beyond a bare assertion, that the range of rainfall shared by both locations or the differences in the depth of the potholes renders the ( USDA comparison) site insufficiently “local.”” The trial judge also stated that the Fosters did not challenge the USDA expert testimony about rainfall averages on the land. The Fosters then appealed this decision to the Eighth Circuit Court of Appeals. The Court of Appeals in its decision upheld the District Court and ruled that the original USDA agency decision was a reasonable interpretation of USDA regulations and that courts should give deference to the “informed discretion of responsible federal agencies.”

The Fosters have now filed a Petition to have the case heard by the United States Supreme Court. Unfortunately for the Fosters, weak facts make bad law. The Foster case, in my view, will not be accepted by the U.S. Supreme Court. Although the Foster Petition to the Supreme Court presents important arguments about agency authority to make decisions and about a court’s deference to an agency decision, the Court will also look at the underlying facts of the case before it. The facts of the Foster case are not strong. Because the Supreme Court may not hear the case, however, this does not mean that the issues raised by the Fosters are without grounds. Overreaching by the USDA in Swampbuster and wetlands decision and rulemaking is a genuine issue. Proposed legislation filed this year in Congress is intended to address some of these challenges. The sponsors of the filed bill argue that the new law would ensure more timely decisions by the USDA; would make the appeals process more efficient for a landowner/farmer and would improve government transparency in providing information to landowners and farmers affected by the Swampbuster process. The intention behind the current Swampbuster law has merit, but I am reminded of what my father said about raising me. “David, my intentions with you were good. It is the outcome that is questionable.”

David Ganje practices law in the area of natural resources, environmental and commercial law.