two decisions by SD Supreme Court today

The SD Supreme Court handed down two decisions this morning: 1) McCook Lake Canal issue resolved; 2) Criminal Expungement Vacated; Summaries follows: MCCOOK LAKE RECREATION AREA v. DAKOTA BAY, LLC, ET AL., 2025 S.D. 53: This decision resolves a consolidation of cases which involve an effort to connect a canal with McCook Lake (and change the shoreline thereof). The dispute and proceedings below are described in the first two paragraphs of the Court’s opinion. The Final Resolution of Affirmance is described in the final paragraph of the Court’s opinion, which is also set forth below: First two ¶s: [¶1.] Dakota Bay, LLC, owns a number of lots adjacent to McCook Lake in Union County. Michael Chicoine, the owner of Dakota Bay, planned to construct an 1,800-foot-long, 110-foot-wide canal extending across his property to connect to the southeast corner of McCook Lake. To begin this project, Chicoine first applied to South Dakota Game Fish and Parks (GF&P) for a shoreline alteration permit. After consultation with GF&P, Chicoine applied for a permit to appropriate water from an existing irrigation well on his property (the well permit) to initially fill and maintain the water level in the canal which would be lined with an 18-inch fat clay liner. After learning of Chicoine’s plans, the McCook Lake Recreation Area Association (Association) filed a petition with the South Dakota Department of Agriculture and Natural Resources (DANR) Water Management Board (Board) seeking a declaratory ruling that Chicoine and Dakota Bay must apply for and obtain a permit to appropriate water from McCook Lake before obtaining a shoreline alteration permit. The Association also opposed Dakota Bay’s application for the well permit. [¶2.] After a hearing, the Board granted Chicoine/Dakota Bay’s well permit application and denied the Association’s petition for declaratory ruling. The Association appealed both decisions to the circuit court and the court issued a memorandum opinion affirming the Board’s decisions. The Association appealed and during oral argument before this Court, the parties agreed that the cases should now be consolidated. We agree and render a consolidated opinion. Concluding ¶ (the decision): [¶71.] We conclude that the circuit court properly affirmed the Board’s denial of the Association’s petition for declaratory ruling seeking a declaration that the alteration of the shoreline of McCook Lake to construct a canal requires a permit to appropriate water from McCook Lake. The Board correctly concluded that the proposed construction of the canal will not result in an appropriation of water from McCook Lake and appropriately denied the Association’s petition on that basis. Additionally, we affirm the circuit court’s ruling that the Board did not err by finding that Dakota Bay’s proposed use of water from the irrigation well is a beneficial use in the public interest. We also affirm the circuit court’s ruling that the Board did not abuse its discretion by quashing the Association’s subpoenas but hold that the procedure for issuing subpoenas in administrative proceedings is governed by the APA, rather than the rules of civil procedure. This ruling is unanimous (5-0), with the Court’s opinion authored by Justice Kern. Circuit Judge Mowery sat on this case, in lieu of Chief Justice Jensen. RECORD EXPUNGEMENT OF JONES, 2025 S.D. 54: Criminal Defendant, who was charged with Murder but was found “not guilty” by jury, sought an expungement of the records relating to his arrest and trial. The trial court granted the expungement, over the objection of the State. State brought this appeal. The SD Supreme Court reversed and vacated the order of expungement, holding that “there was no evidence offered to show that an expungement of the records of his arrest and court proceeding would serve the public’s best interest or the ends of justice” as required by SDCL 23A-3-30. Footnote 1 of the Opinions states: The record of the criminal prosecution (06CRI20-000022) contains a video recording of the events leading up to Schumacher’s shooting, although there is no audio. It also depicts the two gunshots Jones fired. With respect to the second shot, the video shows Jones pointing his gun, with a laser, at Schumacher while Schumacher is lying on the ground obviously severely injured, before firing the second shot. This ruling is unanimous (5-0), with opinion authored by Justice DeVaney. Circuit Judge Clapper sat on this case, in lieu of Justice Myren. These decisions may be accessed at http://ujs.sd.gov/Supreme_Court/opinions.aspx .

County Assessment of Wetlands Overturned

The SD Supreme Court handed down one decision this morning, holding, inter alia: 1) Roberts County Assessment of wetlands Overturned Summary follows: (NOTE: This case was submitted, on briefs, to the Court less than a month ago, on August 26, 2025) PALLANSCH, ET AL. v. ROBERTS COUNTY, 2025 S.D. 52: This is a dispute over the tax assessment of some 150 acres of land that is burdened by a “federal government perpetual wetland reserve easements that significantly limit the agricultural use of the land.” The landowner contends that the Roberts County Board of Assessment over-valued the land to such a degree that it violated the Constitutional Protection, under the South Dakota Constitution, S.D. Const. art. XI, § 2 ("the valuation of property for taxation purposes shall never exceed the actual value thereof."). Both The Office of Hearing Examiners and the Circuit Court upheld the Roberts County Director of Equalization. The SD Supreme Court reversed and remanded, stating: [¶27.] The ALJ did not make a factual finding as to the actual value of the property based on the evidence presented at that hearing. The entry of such a finding was a necessary part of its adjudicatory role. This “actual value” finding is needed to determine the actual value for constitutional purposes. The circuit court’s order of affirmance is reversed. The case is remanded to the circuit court with direction to remand to the ALJ to make a finding as to actual value based on the evidence already presented. After the ALJ issues a new decision, either party may appeal through ordinary means. This decision is unanimous (5-0) with opinion authored by Justice Myren. This decision may be accessed at http://ujs.sd.gov/Supreme_Court/opinions.aspx .

Parent v Non-Parents Custody Dispute

 The SD Supreme Court handed down 1 new decision this morning. Summary is set forth below. 1) Parent prevails over Non-Parents in custody dispute; Summary follows: MELIUS v. SONGER, 2025 S.D. 51: This is an extended and bitter custody dispute between the child’s biological father and the child’s uncle (mother’s brother) and aunt. The trial court awarded primary custody to Father, but also awarded visitation rights to Uncle and Aunt. The resolution of this appeal generated 35 pages of opinions. The Court affirmed the award of primary custody to Father, but reversed the award of visitation rights to Uncle and Aunt. The Court’s Opinion is authored by Justice Myren. Justice Kern dissents on the issue of visitation rights, indicating that she would affirm those rights as afforded to Uncle and Aunt. The trial court’s assessment of attorney fees of $3,992.59 against Father was reversed and remanded for recalculation. Chief Justice Jensen dissented on the attorney fee disposition, indicating that the full award should remain intact. This decision provides an extensive analysis of the rules regarding “parent v non-parent” custody decision-making and also a discussion of the possible application of the the Indian Child Welfare Act (ICWA). Justices Salter and DeVaney fully agreed with Justice Myren’s Opinion. This decision may be accessed at http://ujs.sd.gov/Supreme_Court/opinions.aspx .

Three Reversals by SD Supreme Court

The SD Supreme Court handed down three decisions this morning: 1) Error to dismiss drug charges; 2) Error to grant Summary Judgement for City of Spearfish; 3) Error to rule for Dakota State University. Summaries follows: STATE v. BRADSHAW, 2025 S.D. 48: Trial Court dismissed criminal drug charges against Defendant based upon “unnecessary delay” in accordance with SDCL 23A-44-3. State appeals. The SD Supreme Court reversed, stating: [¶19.] This record does not support the circuit court’s determination that the prosecution was unnecessarily delayed. The reasons cited by the circuit court do not support the exercise of its discretion under SDCL 23A-44-3. This ruling is unanimous (5-0), with Opinion authored by Justice Myren. MAHMOUDI v. CITY OF SPEARFISH, 2025 S.D. 49: Plaintiff sued City for personal injuries which she sustained when she “stepped onto a metal culvert installed by the City.” Plaintiff pursued three theories: 1) nuisance; 2) negligence; and 3) recklessness (gross negligence). The trial court granted the City Summary Judgment on all claims. The SD Supreme Court reversed and remanded on Plaintiff’s negligence claim. The Court’s opinion is authored by Chief Justice Jensen. All 5 Justices voted to reverse and remand. Justice Kern filed a concurring opinion. The Court's opinion runs 18 pages, ¶¶ 1 - 43. Justice Kern's opinion runs 14 pages, ¶¶44 - 65. S.D. BOARD OF REGENTS v. MADISON HOUSING, 2025 S.D. 50: This litigation arises as a result of a construction dispute between DSU (Dakota State University) and the Madison Housing Commission, relating to the construction of “two eight-plex apartment buildings.” Litigation was instituted by DSU as a Declaratory Judgment Action. The trial court ruled for DSU. The SD Supreme Court reversed and remanded, holding: [¶58.] We reverse the court’s entry of partial summary judgment in favor of DSU on the above two issues relating to the reserve account and buy-out provision, and vacate the final judgment and order entered by the court. We remand for further proceedings consistent with this opinion, including the entry of partial summary judgment in favor of the Commission on the first two issues. This ruling is unanimous (5-0), with opinion by Justice DeVaney. These decisions may be accessed at http://ujs.sd.gov/Supreme_Court/opinions.aspx .

Three New Decisions by SD Supreme Court

The SD Supreme Court handed down three decisions this morning: 1) State Health Lab Report Upheld; 2) Civil Penalties of $2,000 and attorney fee award of $2,000 upheld against Mother who willfully disobeyed Visitation Order; 3) Summary Judgment involving (alleged) sale of goods Reversed and Remanded, but Request for Change of Judge Denied. Summaries follows: STATE v. ANDERSON, 2025 S.D. 45: Defendant was found asleep in his vehicle at 3 AM in a parking area adjacent to a storage facility. After blood and urine testing, the State Charged the Defendant with 3 counts (“(1) driving under the influence; (2) an alternative count for driving or being in physical control of a motor vehicle while under the influence; and (3) unauthorized ingestion of a controlled substance”). The Jury convicted Defendant of Counts 2 & 3, but found him not guilty of “driving under the influence.” Defendant’s appeal is focused primarily on evidentiary issues related to the “state health lab’s test results.” The SD Supreme Court rejected his assertions and affirmed. This is a unanimous (5-0) ruling, with opinion authored by Justice Myren. LEFORS v. LEFORS, 2025 S.D. 46: This an action by Father against Mother for alleged willful violations of a Visitation Order. Invoking SDCL 25-4A-5, the trial court imposed a “$500 civil penalty for each of the four failed visits for a total of $2,000,” on Mother and also awarded Father $2,000 for attorney’s fees. The SD Supreme Court affirmed in a unanimous (5-0) ruling, with opinion authored by Chief Justice Jensen. Father’s request for appellate attorney fees was denied. ANDERSON INDUSTRIES v. THERMAL INTELLIGENCE, 2025 S.D. 47: This is a suit by a Seller for the sale of goods to Buyer, a Canadian Corporation. The resolution of this dispute involves application of the UCC, “implicating Article 2 of the UCC, which is codified within SDCL chapter 57A-2.” The trial court granted summary judgment for Plaintiff Seller. The SD Supreme Court reversed and remanded for the resolution of “questions of material fact regarding breach.” This ruling is unanimous (5-0), with opinion authored by Justice Salter. Interestingly, the successful appellant requested that the Supreme Court assign this case to a different trial judge in the event of success on appeal. The SD Supreme Court rejected that request in note 10, stating, “This request is unfounded and based upon nothing more than the existence of an adverse decision, as counsel confirmed at oral argument.” These decisions may be accessed at http://ujs.sd.gov/Supreme_Court/opinions.aspx .

Overbroad Protection Order Reversed

 

The SD Supreme Court handed down 1 new decision this morning.  Summary is set forth below.

1)    Overbroad Protection Order Reversed;

 

Summary follows:

 

WAGNER v. TOVAR, 2025 S.D. 44: Ex-girlfriend sought Order of Protection, on her behalf and also on behalf of two children, against Father of Children.  The Trial Court, “found that domestic abuse occurred and issued a five-year domestic permanent protection order that required [Father] not to have any contact with [ex-girlfriend] and their two children.”  The SD Supreme Court reversed, holding that, “The circuit court abused its discretion when it prohibited all contact between [Father] and his children for five years.”  The Court, “remand[ed] to the circuit court with direction to conduct such further proceedings as are necessary and to amend the protection order to provide appropriate contact and visitation between [Father]and the children that is consistent with the best interests of the children.”  This decision is unanimous (5-0), with opinion authored by Justice Myren.

 

This decision may be accessed at

 

http://ujs.sd.gov/Supreme_Court/opinions.aspx .

 

 

5 Reversals

 The SD Supreme Court handed down five decisions this morning, each one reversing the lower court’s ruling. 

1)   Right of 1^st refusal for sale of cattle;

2) Communication in official proceeding is absolutely privileged;

3) Employer prevails in Work Comp proceeding;

4) Plaintiff survives statute of limitations ruling; and

5) Punitive damage award vacated.

  

Summaries follows: 

ALEXANDER v. ESTATE OF HOBART, 2025 S.D. 39: This is a dispute over an alleged right of 1^st refusal in regard to sale of cattle and the right to graze on federal land.  The nature of this dispute, the result at the trial level and the result on appeal is summarized in the opening paragraph of the Court’s opinion:

[¶1.] Rodney Alexander and Steve Hobart entered into an agreement giving Alexander a right of first refusal to purchase Steve’s cattle and to have Steve’s national forest livestock grazing permit transferred to him. They, along with Steve’s son Nick, later signed an addendum clarifying that the agreement extended to Nick.  Several years later, Nick sold the cattle, and the permit was transferred to a third party without the Hobarts first notifying Alexander and giving him the opportunity to exercise the right of first refusal. Alexander sued the Hobarts for breach of contract and fraud. Steve and Nick moved for judgment on the pleadings alleging the contract was void for impossibility of performance or, alternatively, that it was for an unlawful object. They also claimed the right of first refusal is an unreasonable restraint on the alienation of property. The circuit court granted the motion on the grounds of impossible performance. Alexander appeals, asserting that the circuit court erred in concluding the contract was void. We reverse the circuit court’s order and judgment on the pleadings. Additionally, through notice of review, Nick seeks review of the circuit court’s ruling that the right of first refusal is not an unreasonable restraint on alienation of property. We affirm the circuit court’s ruling on that issue.

This is a unanimous (5-0), with opinion authored by Justice DeVaney.

ROWE v. ROWE, 2025 S.D. 40: South Dakota law, SDCL 20-11-5(2), establishes a privilege to communications made “in any legislative or judicial proceeding, or in any other official proceeding authorized by law.”  Plaintiff filed suit, “for tortious interference with a business relationship”  based upon a letter written by the Defendant (Plaintiff’s ex-wife, supported by her two daughters) to a Tribal Land Board, resulting in a cancellation of Plaintiff’s lease of certain tribal land.  Defendants moved for summary judgment on the basis that the privilege afforded by SDCL 20-11-5(2), is an absolute one. The trial court denied the motion.  The SD Supreme Court permitted this intermediate appeal and ruled for the Defendants, stating:

[¶40.] We conclude that the absolute privilege provided in SDCL 20-11-5(2) applies to claims of tortious interference with business relationships, and that the elements of the privilege are satisfied here. Further, although this privilege is an affirmative defense that must be pled, the issue of privilege was tried, within the summary judgment proceedings, by the implied consent of the parties.

This decision makes clear that the privilege applies to claims for tortious interference with business relationships. This ruling is unanimous (5-0), with opinion authored by Chief Justice Jensen.  Circuit Judge Kelderman sat on this case, in lieu of Justice Salter. 

 

PHAM v. SMITHFIELD FOODS, 2025 S.D. 41: Employer accepted a “work comp” claim and made payments for two years without a hearing or settlement agreement as to compensability.  Thereafter Employer ceased making payments because of lack of causation. The ALJ upheld the Employer’s decision.  The Circuit Court reversed, holding for the Employee on the basis that the Employer had not met its burden on the issue of causation, “reasoning that by initially accepting [Employee’s] claims as a compensable injury, the burden shifted to [Employer] to show a change in circumstances to justify suspending benefits.”  The SD Supreme Court reversed and reinstated the ALJ’s ruling.  This ruling is unanimous (5-0), with opinion authored by Justice Salter.  Circuit Judge Knoff sat on this case, in lieu of Justice Kern.

 

NELSON v. TINKCOM, 2025 S.D. 42: Plaintiff filed suit, “assert[ing] eight claims stemming from its alleged interest in a coin shop as well as a claim for conversion of its property.”  Via a Motion for Judgment on the Pleadings, and without filing an Answer, Defendants requested a dismissal based upon the statute of limitations.  The trial court granted the dismissal.  The SD Supreme Court reversed, stating:

[¶35.] We affirm the circuit court’s assessment of the accrual date of the first six of the Business Interest Claims. However, we reverse the circuit court’s dismissal of those claims because the court did not resolve the defensive theories advanced by [Plaintiff] that could prevent the application of the statute of limitations. We remand so that those theories may be resolved in the ordinary course of this litigation. Similarly, we reverse the circuit court’s dismissal of the tortious interference with a business relationship and civil conspiracy claims against the [Defendants]. Finally, we reverse the dismissal of the conversion claims.

This ruling is unanimous (5-0) with opinion authored by Justice Myren. Justice Salter filed a brief, 2 paragraph, concurring opinion which addresses a litigant’s ability to raise the statute of limitations defense by way of a Motion for Judgment on the Pleadings.

GOLDENVIEW READY-MIX, LLC v. GRANGAARD CONSTRUCTION, INC., 2025 S.D. 43: The jury’s award of punitive damages on a breach of contractual good faith claim is vacated on appeal by the SD Supreme Court.  Although the case was submitted to the jury on the theory of fraud also, the jury did not find fraud.  Still, the verdict form permitted an award of punitive damages and the jury so utilized it.  In deciding to vacate the punitive damage award and not remand for re-submission to a jury, the Court stated:

[¶67.] Having concluded the implied obligation of good faith issue is preserved and properly before us, we reverse in part, vacating the punitive damages award. However, we decline to order a new trial on remand and affirm the circuit court’s judgment in other respects because we conclude there is insufficient evidence that “but for the error, the result of the proceeding would have been different.” Braun, 2024 S.D. 83, ¶ 26, 16 N.W.3d at 244 (citation omitted).

The Court’s ruling is unanimous (5-0), with opinion by Justice Salter.

 

These decisions may be accessed at

 

http://ujs.sd.gov/Supreme_Court/opinions.aspx .