Judge denies writ of mandamus

Jason Ferguson

Preserve French Creek, Inc., was dealt a blow in its quest to prevent the City of Custer from redirecting its effluent discharge into French Creek. Its request for a writ of mandamus that would stop that portion of the project was denied again in Seventh Judicial Circuit Court.
In a ruling issued Sept. 15, Seventh Circuit Court  judge Stacy Wickre wrote the ordinance voted on by Custer County voters that deems discharge of the city’s effluent into French Creek or its tributaries as a nuisance is preempted by state law that prohibits the county’s enforcement of the ordinance.
Wickre wrote that state law expressly authorizes a county to adopt ordinances ‘as may be proper and necessary to carry into effect the powers granted to it by law...’ citing state law in doing so, adding, “However, a county may not pass an ordinance which conflicts with state law.”
Wickre also said when a local ordinance conflicts with state law, state law preempts the local ordinance, citing case law in her writing.
Wickre further wrote the ordinance directly conflicts with South Dakota Codified Law 21-10-2, which provides “nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.”
Wickre wrote that the defendants, in this case the City of Custer, Custer County, the Custer County Commission, the Custer City Council, Custer County State’s Attorney Tracy Kelley and city attorney Traci Williams, argue that because the Department of Agriculture and Natural Resources issued a permit to operate the treatment plant pursuant to its authority under state law and state administrative rules the plant cannot be deemed a nuisance, and that the court agrees.
Wickre wrote that contrary to an argument made by Preserve French Creek attorneys, the defendants are not estopped from arguing the ordinance is preempted by state law and is thus unenforceable. Estopped refers to the legal term estoppel, which is a legal rule which prevents someone from saying in court that something they have previously stated as true in court, or that has been established by the court as true, is in fact not true.
Finally, Wickre ruled that issuing a writ of mandamus, which is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion, was an inappropriate form of relief. Wickre cited state law and case law to support this ruling as well.
“Plaintiff argues that the City of Custer has a ministerial duty to enforce the local ordinance,” Wickre wrote. “However, the City of Custer has no legal obligation to enforce a local ordinance that conflicts with South Dakota Codified Law. As explained above, the ordinance is preempted by state statute and is, thus, unenforceable. Therefore, mandamus relief is not applicable.”

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