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Posts Tagged ‘South Dakota real estate rights’

Naked in the Wind

Posted on: December 17th, 2021
by David Ganje

I continue to be in a state of puzzlement. My dad would sometimes tell me I was young and naïve. I am now considerably older and by the looks of it still naïve. I always thought South Dakotans said, ‘local control is better.’ This as I was taught is a good maxim for government.

A maxim is a moral rule, principle, or a particular behavior pattern of mankind. I have considered, naively, that local government control is desirable.

Local government control applies to wind farm ordinances. County ordinances covering the development and operation of wind farms are not exclusive of course; the state has adopted a series of statutes and rules administered by the PUC and to an extent the SD GF&P which also apply. Yet the more local government participates in the process the better the representation of residents. Only some counties in South Dakota have adopted local wind farm ordinances also known also as wind energy ordinances.

Wind energy projects create siting issues. The physical placement and configuration of wind turbines, roads, fences, collection lines and the like must be considered. Relevant questions include a project’s impact on existing land use, on a neighbor’s land use, and the environment. These are local issues.

A few months ago on behalf of a landowner client I submitted an extensive letter to a county commission in the state advocating the adoption of a wind energy ordinance. The county had none. I have in the past been accused of being a tree hugger. This criticism is an ad hominem distraction. Neither I nor my client are opposed to wind energy development. I am a third-generation businessman, and in my work have represented natural resource developers.

In the letter to the county, I discussed several things to consider including turbine setbacks, the development application and approval process, decommissioning, infrastructure, and safety. In some counties unfamiliarity with wind technology has kept county leaders from addressing wind development. Contrariwise some counties, like Lincoln County, have adopted significant restrictions on wind energy development.

Creating a county oversight and permitting process, that is – writing a basic wind farm ordinance setting down “rules of the road” gives wind energy projects an affordable, streamlined, and accountable system for legal permitting. On the other hand, open range (meaning no requirements) in which a county has no guidelines is an unsuitable system for a county that has adopted a comprehensive plan.

In Ag and ranch country there are risks in doing nothing. Please consider the matter of abandoned wells and orphaned non-tax-paying gas wells in Harding County. This problem challenges Harding County leaders on questions of how to re-establish a tax base and what party is to clean up all the unused infrastructure.

In a 2013 article in the South Dakota Law Review the author discussed property rights and the preservation of local control in the context of state surface drainage practices. The author said that keeping local oversight is important to county commissions because each county wants to know where related activity occurs within its boundaries; and further wrote that many citizens appreciate local ordinances because these ordinances ensure that a project applicant would, 1. notify the county and the affected landowners and 2. that a public hearing would be scheduled before a proposed project begins. The author’s comments apply equally to a wind energy ordinance. Wind energy ordinances establish reasonable parameters on local planning issues and make the project development process and its operations clearer to residents and the public.

Published in the Rapid City Journal, Dec 3, 2021

South Dakota Real Estate Rights

Posted on: May 24th, 2021
by David Ganje

In this opinion piece I discuss the recent case of a South Dakota farmer criminally convicted for setting drain tile on land subject to a federal wildlife easement. The defendant was charged with destroying real property of the United States because he drained and caused to be drained, without the authority and permission of the government, lands under a federal wildlife easement. The law referred to is the so-called disturbing protected wetlands law. In this Brookings County case the U S Attorney at the behest of the US Fish and Wildlife Service indicted the farmer for setting drain tile on land subject to an existing wildlife easement under which easement rules tiling was a prohibited act. The farmer was convicted after a jury trial, but not on the charge in the government’s indictment. The farmer has appealed the case. The appeal is pending.

The jury found the defendant guilty of an offense lesser than that charged by the filed criminal indictment. The farmer’s defense suggested he thought he had approval from the government to do the tiling after he had requested approval. The jury found the defendant guilty of “disturbing protected wetlands of the United States.” The jury did not find the defendant guilty of the indicted charge of knowingly disturbing protected wetlands of the United States.

I do not presume to pass judgment on whether the defendant was guilty of criminal charges. I opine here on the process. Prosecutorial discretion refers to the recommendation of an agency and a prosecutor’s decision to charge out a crime. Even though the Constitution does not declare who may prosecute or under what circumstances, the U S Supreme Court opined that a government’s decision to prosecute or not prosecute, whether through civil or criminal process, is a decision left to the government’s absolute discretion.

How was the public interest served by pursuing a felony indictment and conviction in this case? Protected wetlands law is a valuable, modern environmental management tool. There are important benefits to modern land-management and waterfowl production laws. Similar land preservation laws have been in effect since I was a kid. I have seen the worth these agricultural and environmental programs provide. Nevertheless the true merit of such laws and the defined prosecution of a case under such laws are separate matters. South Dakota real estate rights should run both ways.

A prosecuting attorney considers the recommendation of an agency and has the legal authority to decide whether or not to bring criminal charges, to determine the nature of any charges and to give a sentence recommendation after a conviction. This legal authority is one of the most significant powers held by the executive branch. In our society a prosecutor does not have to justify to the public its reasons for deciding to proceed or not proceed in a criminal matter.

In prosecuting a criminal case, among the factors a prosecutor considers is whether the public’s interest in a problem could be addressed by other available civil or regulatory remedies. The government may weigh and implement other non-criminal remedies in deciding how to proceed.

After the conviction in this case the prosecutor said that requiring the defendant to restore the wetlands sends an important message. One cannot fault a prosecutor who is attentive to environmental issues. Yet in the Brookings County case the jury did not find a knowing violation of the law. Could the message have been sent by other means? Could a required wetlands restoration and a civil proceeding have been taken against the farmer? Could the government have enforced its rights civilly under the legal terms of the easement? I am want to paraphrase a famous American admiral: It is better to sin against God than to sin against a bureaucracy.