VERMILLION — After twice being rejected — once by Clay County and once by the First Circuit Court — in its attempts to stop a large animal feeding operation from being developed in Clay County, the local Living River Group Sierra Club is going to the top: specifically, the South Dakota Supreme Court.
Susanne Skyrm, Vermillion, the co-chair of the Living River Group of the South Dakota Sierra Club, confirmed Tuesday that the club’s attorney, Mitchell A. Peterson of Sioux Falls, will be filing the appeal with the state’s highest court this week. It is unknown, she said, when the state Supreme Court may hear the case.
This action follows a legal petition filed last September by the local Sierra Club against the Clay County Board of Adjustment and Clay County Commission Chairman Travis Mockler and his wife, Jill, in an attempt to stop the Mocklers from constructing an animal feeding operation on their farm located in Pleasant Valley Township in Clay County.
The Mocklers’ attorney, Brian J. Donahoe of Sioux Falls, was contacted by telephone Tuesday afternoon and said neither he nor Travis Mockler had yet received any notice of the Sierra Club’s appeal to the Supreme Court.
Later Tuesday afternoon, in a voicemail left with the Plain Talk, Donahoe said neither he or Mockler could comment at this time as they still had not received any court pleadings regarding the appeal.
“I’m afraid we’ll just have to give you the standard ‘no comment,’ but I would also say we have not seen the actual appeal documents yet so we are not able to comment on that basis, as well,” Donahoe said.
On Dec. 13, 2019, First Circuit Court Tami Bern ruled that the Sierra Club lacked both direct standing and representational standing in their September court action “because the claim asserted and the relief requested require the participation of individual members of the petitioner.” The Sierra Club is identified as the petitioner in Bern’s ruling.
“The judge ruled that Sierra Club did not have standing, which I understand is the right to be in court. There was no decision on the merits of the issues raised by Sierra Club. Rather, the judge ruled that Sierra Club itself did not have standing,” Skyrm stated in response to questions emailed to her by the Plain Talk. “The judge did determine that individual members of Sierra Club are aggrieved and would themselves have standing if they were personally parties to the case.
“However, the judge ruled that for Sierra Club to rely on the standing of its members, its members would be required to be parties in the case,” she said. “Our group is having difficulty understanding why its individual members (nearly 200 in Clay County, several hundred state-wide, and hundreds of thousands nationally) need to be named as parties individually when the relief we sought was not individualized.”
Approximately a month after the Clay County Board of Adjustment rejected an appeal effort by the Sierra Club and gave final approved to a conditional use permit to the Mocklers, the Sierra Club filed its court papers Sept. 26 with the First Judicial Circuit in Clay County.
The court document lists the long and sometimes arduous path of hearings and the local appeal that concluded with an Aug. 27 decision by the Clay County Board of Adjustment to deny the Sierra Club’s action and grant the Mocklers their conditional use permit.
The document filed in court last September by the Living River Group Sierra Club was a petition seeking a writ of certiorari and a reversal of the board of adjustment’s decision. Certiorari is a court process to seek judicial review of a decision of a lower court or administrative agency.
The Mocklers were granted their conditional use permit by the Clay County Commission on March 25, 2019. The permit would allow the couple to expand their present livestock operation to an Animal Feeding Operation, commonly known as an AFO in the recently re-written Concentrated Animal Feeding Operation (CAFO) ordinance of Clay County.
The petition that eventually was dismissed by Judge Bern was filed on Sept. 26, 2019, with the First Circuit Court by Peterson, the attorney representing the Living River Group Sierra Club. The board of adjustment first heard from Peterson in a July hearing scheduled to address the club’s appeal of the March board of adjustment decision.
A hearing before Judge Bern on the petition was held Dec. 4 in the Clay County Courthouse with Peterson representing the local Sierra Club, James S. Simko, a Sioux Falls attorney representing the Clay County Board of Adjustment and Brian J. Donahoe, a Sioux Falls attorney representing Travis and Jill Mockler.
Her ruling dismissing the Sierra Club’s petition was filed Dec. 13.
“The other, and just as important aspect of the suit, is that we feel we were unfairly treated by the Clay County Board of Commissioners, who displayed a bias towards their Chair’s (Mockler’s) request from the very beginning,” Skyrm said this week. “The application that he presented for a Conditional Use Permit was incomplete, and poorly written, yet they only begrudgingly asked for more information after a series of hearings that lasted throughout the summer.
“There were numerous irregularities committed by the Clay County commissioners throughout the process of the hearings for the CUP and our subsequent appeal of their decision to grant it,” she said. “We feel that we were denied due process and our appeal to the Supreme Court is partly based on that. I believe that the basis for the appeal will be found in the Grounds for Illegality that were listed in our original petition.”
“The Sierra Club’s primary concern with the plan is water quality,” said Sierra Club chapter chair Mark Winegar of Vermillion last October. “But we also are concerned that our elected officials follow the regulations spelled out in the Clay County ordinance.”