JIMMY KRSNAK and LINDA L. KRSNAK, Plaintiffs and Appellants,
BRANT LAKE SANITARY DISTRICT, Defendant and Appellee.
OCTOBER 1, 2018
FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT LAKE
COUNTY, SOUTH DAKOTA, THE HONORABLE VINCENT A. FOLEY Retired
SHAWN TORNOW Sioux Falls, South Dakota Attorney for
plaintiffs and appellants.
R. RISCHE VINCE M. ROCHE of Davenport, Evans, Hurwitz &
Smith, LLP Sioux Falls, South Dakota Attorneys for defendant
The Brant Lake Sanitary District (the District) built an
additional sewage lagoon to process wastewater from the Brant
Lake area. The Krsnaks, who live a short distance from the
new pond, brought an action against the District alleging a
taking or damaging of their property and nuisance. The
circuit court granted the District's motion for summary
judgment on all claims. The Krsnaks appeal. We affirm.
and Procedural History
The District designed and constructed a treatment pond to
service the increase in wastewater flow in the Brant Lake
area. This new pond, referred to as the Brant Lake Sanitary
District pond (BLSD pond), connected into two previously
existing treatment ponds operated by the Chester Sanitary
Jimmy and Linda Krsnak own 8.27 acres of property
approximately 675 feet north of the new water treatment pond
and 1, 100 feet from the existing ponds. Linda has operated a
vegetable farm called "Linda's Gardens" from
the property since 2005. The Krsnaks also have a sixty-foot
well on their land, which they use to water crops for the
business. They opposed construction of the BLSD pond and
brought several lawsuits hoping to stop the project.
In 2011, the Krsnaks appealed to the circuit court the Lake
County Board of Adjustment's decision to grant the
District a conditional use permit to build the pond. In a
memorandum decision dated June 28, 2011, the circuit court
dismissed their action for failing to meet the statutory
requirements for contesting such a decision. See
SDCL 11-2-61 to -65. Next, the Krsnaks filed a petition for a
writ of mandamus to compel the South Dakota Department of
Environmental and Natural Resources (DENR) to stay
construction of the pond. In that action, the Krsnaks argued
DENR did not comply with existing legal requirements when it
approved the BLSD pond. Specifically, they asserted that DENR
violated SDCL 34A-2-27 to -29, administrative rules (ARSD
74:53:01), and its own internal guidelines set forth in the
Recommended Design Criteria Manual for Wastewater Collection
and Treatment Facilities. The circuit court denied the
petition for writ of mandamus and, on appeal, we affirmed.
See Krsnak v. S.D. Dep't of Env't & Nat.
Res., 2012 S.D. 89, ¶ 23, 824 N.W.2d 429, 438.
In May 2012, around the same time the Krsnaks petitioned for
writ of mandamus, they also filed the present action. They
alleged in their complaint that the District's new pond
violated: (1) SDCL 21-10-1, the general nuisance statute; (2)
SDCL 34A-2-21's prohibition against pollution of state
waters; and (3) a Lake County ordinance. On July 2, 2012, the
District moved to dismiss, arguing the nuisance violations
were premature because the pond was not yet constructed. In
the interim, the Krsnaks filed an amended complaint seeking a
declaratory judgment and bringing an additional claim of
inverse condemnation along with their nuisance claim. In the
Krsnak's view, because they filed an amended complaint
after the District moved to dismiss, the District's
motion was moot because it targeted their original complaint
rather than the amended version.
On December 31, 2012, the circuit court denied the
District's July 2012 motion to dismiss, suggesting the
denial was an "invitation for further evidence"
from the Krsnaks regarding their water seepage
claims. The District filed an answer in January
2013, denying the allegations set forth in the Krsnaks'
amended complaint and asserting the affirmative defenses of
res judicata and collateral estoppel. It also argued the
Krsnaks' case should be dismissed under the doctrine of
Sometime in late 2012 or early 2013, the BLSD pond went into
operation. Soon after, the Krsnaks and their neighbors began
reporting stronger odors emanating from the pond than from
the existing Chester system. In April 2014, the District
deposed Linda and Jimmy Krsnak. During his deposition, Jimmy
Krsnak stated the odor "has actually made us physically
ill. We've had odor so bad that we just had to leave the
After the depositions, however, the litigation stagnated for
more than two years. The District sent the Krsnaks a letter
asking for supplemental discovery responses on April 9, 2014.
Even though the parties exchanged several emails between June
2014 and January 2015, the Krsnaks did not produce the
discovery. The District moved to dismiss for failure to
prosecute on May 29, 2015. The circuit court denied the
Meanwhile, in early 2015, the Krsnaks retained an expert to
appraise the value of their property before and after
construction of the BLSD pond. The appraiser concluded that
their property suffered a diminution in value of $82, 800.00
because of the new sewage pond. The appraiser noted the
pond's proximity to the Krsnaks' house, the odor, and
its size. According to ...