Court rules in favor of city in French Creek flap

Because the City of Custer’s action in constructing, establishing, operating and maintaining its upgraded wastewater treatment facility was done in a matter that follows state law, its actions cannot constitute a nuisance.
That was the opinion of the South Dakota Supreme Court as it handed down an opinion regarding the lawsuit filed by Preserve French Creek in an attempt to stop the city from discharging its effluent into French Creek just below Glen Erin Schoolhouse.
The victory for the city came down last Thursday afternoon, with chief justice Steven Jensen writing the opinion.
The opinion invalidates the ordinance passed by voters in June of last year that declared the effluent being dumped into French Creek as a county nuisance. The ordinance, which the city disagreed with, also received push back from members of the Custer County Commission and state’s attorney Tracy Kelley as unenforceable due to the state’s Department of Agriculture and Natural Resources (DANR) signing off on the discharge permit in 2020. At that time Kelley and some on the commission said state law would supercede any county ordinance, wich last week’s opinion confirmed.
Controversy over the proposed discharge location by and large began in 2022 when a resident of Lower French Creek Road learned of the plans during a routine update of the wastewater system upgrades project at a Custer City Council meeting. When the city began to move forward with its plans to update its wastewater system several years ago due to the age of the system as it stood, the council opted to move the discharge location from Flynn Creek to French Creek for what it said was a number of reasons, including the shorter distance to that creek, which meant less money  spent on the project.
In 2022 a group of the property owners under the moniker “Preserve French Creek” was formed and late that year gave an extensive presentation to the city and county on why it felt the discharge should remain at Flynn Creek and the potential detriments to French Creek and subsequently their property values and quality of life. The group said tourism could also be affected as tourists were turned off by the prospect of recreating in a creek that has the city’s effluent flowing.
The group also maintained the legal notice of the permit hearing published in the Custer County Chronicle did not amount to actual notice of the permit application and felt the city and engineers working for the city did the bare minimum in terms of notifying those downstream from the discharge—as well as others who could be affected by the discharge location change—of the proposed new discharge location.
Notice in the legal notices of newspaper, it was argued, although the legal way required by the state, was an antiquated way of notifying the public of such a permit/project.
However, city officials argued it followed required procedures for procuring the permit and that the permit to discharge into French Creek granted by DANR would see the effluent being treated by a Submerged Attached Growth Reactor (SAGR) that was able to meet the newly-crafted and stringent requirements to be discharged into a coldwater fishery such as French Creek.
When it became clear the city was pressing on with the project and the county felt its hands were tied regarding the issue, Preserve French Creek organized a petition to put on the June 2023 ballot a proposed ordinance to declare “Discharging any treated water from the Custer City, South Dakota, sewage treatment plant into French Creek or its tributaries, within the boundaries of Custer County, South Dakota, as a nuisance.”
The initiated measure was passed 809-609 by county voters and the vote was canvassed by the county commission. However, the county did not enforce the newly-created ordinance because there were questions with regard to  whether it was enforceable and because there was nothing to enforce yet, as the city had not yet begun using its new discharge location, which is set for 2025.
Preserve French Creek then filed a writ of mandamus, 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, in an attempt to get the county to enforce the ordinance.
Seventh Circuit Court judge Stacy Wickre later denied the write of mandamus, writing 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 wrote when a local ordinance conflicts with state law, state law preempts the local ordinance, citing case law in her writing, which the high court confirmed in its ruling last week.
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.”
In his opinion, Jensen wrote “Preserve (French Creek) has no clear right to enforcement of the invalid ordinance, and the city and county have no definite legal obligation to enforce it.”
Request for comment from representatives of Preserve French Creek regarding the ruling were forwarded to the group’s attorneys, who had not offered comment by deadline.
City of Custer Mayor Bob Brown said the issue is a reminder to people to keep track of what is going on in their area, while thanking everyone who supported the city during the legal process.
“It’s a win for the city,” he said.