APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE JANINE M. KERN Judge
The opinion of the court was delivered by: Konenkamp, Justice
[¶1.] Plaintiff ranchers sued the State because of ongoing damage to their property from incursions of prairie dogs from public lands. Relying on multiple statutes requiring the State to manage and control prairie dog populations, plaintiffs requested injunctive relief, abatement, and damages. After considering cross-motions for summary judgment, the circuit court granted plaintiffs summary judgment and ordered a trial on damages. When the case was reassigned, the State moved the new judge to reexamine the first judge's ruling. On reconsideration, the court vacated the first summary judgment and granted summary judgment for the State. Plaintiffs appeal.
[¶2.] Plaintiffs are ranchers in western South Dakota.*fn1 They own and lease acreage abutting public lands. Prairie dogs from these public lands have encroached upon their property, causing lost income, additional expenses, and property damage. Plaintiffs brought suit against the South Dakota Department of Game, Fish, and Parks (SDGFP), the South Dakota Department of Agriculture (SDDA), and the secretaries of these departments (collectively the State). Plaintiffs alleged that the State failed to comply with multiple statutes requiring it to manage and control prairie dogs. See SDCL 41-11-15; SDCL 34A-8-7; SDCL 40-36-3.1. They also alleged that the State's failure to act constituted a nuisance under SDCL 34A-8A-5, giving plaintiffs a cause of action against the State. Plaintiffs sought injunctive and monetary relief.
[¶3.] The State moved for summary judgment and argued that plaintiffs' claims were barred by the Supremacy Clause and the doctrine of sovereign immunity. In regard to the Supremacy Clause, the State claimed that the reintroduction of the black-footed ferret in 1994 on certain public lands in South Dakota by the United States Department of the Interior caused the increased prairie dog population, which federal action the State could not control. On sovereign immunity, the State asserted that the control and management of prairie dogs is a discretionary act, immune from liability, and no statute contains an express waiver by the Legislature of the State's sovereign immunity. Finally, the State argued that plaintiffs failed to comply with the notice provisions of SDCL 3- 21-2, in that neither the commissioner of administration nor the attorney general received notice of plaintiffs' suit before they brought their action. Plaintiffs responded with a cross motion for summary judgment.
[¶4.] Circuit Judge A.P. Fuller held hearings in May and July 2010, addressing the issues of sovereign immunity and the Supremacy Clause. At the conclusion of the July hearing, Judge Fuller issued an oral ruling, granting plaintiffs' motion for summary judgment. He declared that SDCL 34A-8-7, SDCL 40-36-3.1, and SDCL 41-11-15 impose statutory obligations upon the State to control and manage the prairie dog population. Then, because SDCL 34A-8A-5 gives a property owner a nuisance cause of action when the failure to control or manage prairie dogs causes them to encroach on the owner's property and cause injury, Judge Fuller ruled that the State expressly waived its sovereign immunity. He held that the remedies of SDCL 34A-8A-6 (civil action, injunctive relief, abatement, etc.) were available to plaintiffs. He found the Supremacy Clause inapplicable because, regardless of the federal actions in reintroducing the black- footed ferret, the State still had a duty to control and manage the prairie dog population. Finally, he ruled that the notice provisions of SDCL 3-21-2 did not apply, and if they did, plaintiffs substantially complied. Judge Fuller denied the State's motion for summary judgment, granted the plaintiffs' motion, and ordered a trial on damages. The State petitioned unsuccessfully for an intermediate appeal.
[¶5.] When Judge Fuller could not proceed with the case, it was assigned to Circuit Judge Janine M. Kern. In November 2010, the State moved for reconsideration of Judge Fuller's summary judgment decision. It argued that "Judge Fuller's bench decision incorrectly ignored [the State's] sovereign immunity arguments, which should be and are dispositive of the case." The State also asserted that plaintiffs failed to provide notice as required by SDCL 3-21-2. It averred that "[i]f Judge Fuller's decision is allowed to stand, substantial taxpayer dollars will have to be expended to prepare for and try the damages aspect of this case, [and] the time and attention of numerous State officers and employees will be diverted from their day-to-day duties and responsibilities to the citizens of South Dakota."
[¶6.] Plaintiffs argued that Judge Kern did not have the authority to reconsider Judge Fuller's summary judgment ruling, as it was a final decision. But Judge Kern determined that she had the authority because Judge Fuller's decision included only a limited analysis of sovereign immunity. On that issue, she ruled that plaintiffs' claims implicated discretionary functions, and nothing in SDCL 34A- 8A-6 specifically authorized suit against the State. Judge Kern found no merit to the State's argument that notice was insufficient. Thereafter, she vacated Judge Fuller's decision, granted the State's motion for summary judgment, and dismissed plaintiffs' suit with prejudice.
[¶7.] Plaintiffs appeal, asserting multiple issues, which we restate as follows: (1) did Judge Kern have the legal authority to reconsider and vacate Judge Fuller's decision? (2) if Judge Kern had the authority, did she err when she granted the State's motion for summary judgment on grounds of sovereign immunity?
[¶8.] We need not address the question whether Judge Kern had the authority to reexamine Judge Fuller's ruling on summary judgment. Regardless of which side prevailed, our standard of review remains the same. Summary judgment is examined de novo: we give no deference to either judge's ruling. Bickner v. Raymond Twp., 2008 S.D. 27, ¶ 4 n.1, 747 N.W.2d 668, 670 n.1. Likewise, whether sovereign immunity has been waived and whether an act is discretionary or ministerial are questions of law, also reviewed de novo. Bickner, 2008 S.D. 27, ¶ 10, 747 N.W.2d at 671 (citations omitted); Hanson v. S.D. Dept. of Transp., 1998 S.D. 109, ¶ 18, 584 N.W.2d 881, 885.
[¶9.] Plaintiffs rely on multiple statutes that they contend grant them the right to sue the State on its failure to manage and control prairie dogs. They argue that SDCL 41-11-15(2) mandates that the State keep the prairie dog population within an established acreage limit based on the 1988 United States Forest Service prairie dog management plan. That plan allows prairie dogs to populate 6,180 acres in the Conata Basin and Buffalo Gap National Grasslands. The statute provides that "if future increases in prairie dog acres are needed, a funding mechanism shall be established to provide financial compensation to landowners suffering lost income." SDCL 41-11-15(2). Because the prairie dog ...