MARK AND MARILYN LONG, ARNIE AND SHIRLEY VAN VOORST, TIM AND SARA DOYLE, TIMOTHY AND JANE GRIFFITH AND MICHAEL AND KAREN TAYLOR, Plaintiffs and Appellants,
STATE OF SOUTH DAKOTA, Defendant and Appellee.
on January 12, 2016
FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT LINCOLN
COUNTY, SOUTH DAKOTA THE HONORABLE PATRICIA C. RIEPEL Retired
V. MEIERHENRY CHRISTOPHER HEALY CLINT SARGENT of Meierhenry
Sargent, LLP Sioux Falls, South Dakota Attorneys for
plaintiffs and appellants.
P. THIMSEN JOEL E. ENGEL III of Woods, Fuller, Shultz &
Smith, PC Sioux Falls, South Dakota Attorneys for defendant
After Landowners prevailed against the State on a claim of
inverse condemnation, Landowners requested that the State pay
"reasonable attorney, appraisal and engineering fees,
and other related costs" pursuant to SDCL 5-2-18 and the
Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970, which is codified at 42 U.S.C.
§§ 4601-4655 (2012). The circuit court denied their
request. Landowners appeal. We affirm.
In July 2010, Landowners suffered significant flooding that
damaged their real and personal properties. Landowners'
properties are located on the west side of Highway 11, north
of the intersection of Highway 11 and 85th Street. The South
Dakota Department of Transportation (DOT) built Highway 11 in
1949 and the State maintains sole control of Highway 11.
Highway 11 runs north and south through Lincoln and Minnehaha
Counties and lies across the natural waterway known as Spring
Landowners filed an inverse condemnation claim against the
State and the City of Sioux Falls seeking damages due to the
flooding of Landowners' properties after a heavy
rainfall. A court trial was held in February 2014 on the
issue of liability. The circuit court found the construction
of Highway 11 and the inadequate culverts beneath it caused
the flooding damage to Landowners' real and personal
properties. In December 2014, a jury trial was held on the
issue of damages. The jury awarded each set of Landowners
individualized damages. In August 2014, Landowners made a
motion pursuant to SDCL 5-2-18 and the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970
as amended by the Surface Transportation and Uniform
Relocation Assistance Act of 1987 (collectively, "the
URA") for payment of "reasonable attorney,
appraisal and engineering fees, and other related
costs." The URA is codified at 42 U.S.C. §§
4601-4655 (2012). The circuit court denied
Landowners' motion based on Rupert v. City
of Rapid City, 2013 S.D. 13, 827 N.W.2d 55. In January
2015, the circuit court issued its order denying fees and
expenses. Landowners appeal.
We restate Appellants' issue as follows:
Whether a party who prevails on a claim of inverse
condemnation arising under South Dakota Constitution article
VI, § 13 is entitled to recovery of attorney's fees
and litigation expenses under SDCL 5-2-18.
"Questions of statutory interpretation and application
are reviewed under the de novo standard of review with no
deference to the circuit court's decision."
Deadwood Stage Run, LLC v. S.D. Dep't of
Revenue, 2014 S.D. 90, ¶ 7, 857 N.W.2d 606, 609
(quoting Argus Leader v. Hagen, 2007 S.D. 96, ¶
7, 739 N.W.2d 475, 478).
Landowners contend they are entitled to recovery of
attorney's fees and litigation expenses under SDCL 5-2-18
as they prevailed on their claim of inverse condemnation.
They assert that the South Dakota Legislature intended to
adopt by reference the URA when it enacted SDCL 5-2-18. The
purpose of the URA is to establish a uniform policy for the
fair treatment of persons "displaced as a direct result
of programs or projects undertaken by a Federal agency or
with Federal financial assistance" and to ensure they do
not suffer disproportionate injuries due to a program
designed to benefit the public as a whole. 42 U.S.C. §
4621(b). Displaced persons are defined as "any person
who moves from real property, or moves his personal property
from real property" in response to "a written
notice of intent to acquire or the acquisition of such real
property in whole or in part for a program or project
undertaken by a Federal agency or with Federal financial
assistance[.]" 42 U.S.C. § 4601(6)(A)(i)(I). The
URA contains a section permitting property owners to "be
paid or reimbursed for necessary expenses as specified in
section 4653 and 4654 of this title." 42 U.S.C. §
4655. Necessary expenses are defined, in part, in 42 U.S.C.
§ 4654(c) as "reasonable costs, disbursements, and
expenses, including reasonable attorney, appraisal, and
engineering fees[.]" Landowners further contend that 49
C.F.R. § 24.107 (2015) reinforces the State's
obligation to pay the Landowners' inverse condemnation
The URA places several requirements on the receipt of federal
funding related to the acquisition of land. It is within the
power of Congress to "attach conditions on the receipt
of federal funds . . . 'by conditioning receipt of
federal moneys upon compliance by the recipient with federal
statutory and administrative directives.'" South
Dakota v. Dole, 483 U.S. 203, 206, 107 S.Ct. 2793,
2795-96, 97 L.Ed.2d 171 (1987) (quoting Fullilove v.
Klutznick, 448 U.S. 448, 474, 100 S.Ct. 2758, 2772, 65
L.Ed.2d 902 (1980) (plurality opinion)). In certain
instances, South Dakota has complied with federal directives
in order to receive federal funding. See SDCL
35-9-4.1 (noting adoption of laws "under the duress of a
funding sanction imposed by the United States Department of
42 U.S.C. § 4655 provides, in part:
(a) Notwithstanding any other law, the head of a Federal
agency shall not approve any program or project or any grant
to, or contract or agreement with, an acquiring agency under
which Federal financial assistance will be available to pay
all or part of the cost of any program or project which will
result in the acquisition of real property on and after