IN THE MATTER OF THE DRAINAGE PERMIT 11-81 and 12-142, JASON MCAREAVEY, APPLICANT, MARK DESCHEPPER, Appellant,
THE BOARD OF COMMISSIONERS, MINNEHAHA COUNTY, SOUTH DAKOTA Respondent and Appellee, and JASON MCAREAVEY and VERNON MCAREAVEY, Appellees. MARK DESCHEPPER, Plaintiff and Appellant,
VERNON R. MCAREAVEY and THE BOARD OF COMMISSIONERS, MINNEHAHA COUNTY, SOUTH DAKOTA Defendants and Appellees.
ON AUGUST 28, 2018
FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE MARK SALTER
SWANSON Canton, South Dakota Attorney for appellant and
A. POWER JAMES E. MOORE of Woods, Fuller, Shultz & Smith
P.C. Sioux Falls, South Dakota Attorneys for respondent-
appellee, Board of Commissioners, Minnehaha County.
T. CLARKE VINCE M. ROCHE of Davenport, Evans, Hurwitz &
Smith, LLP Sioux Falls, South Dakota Attorneys for appellees,
Jason McAreavey and Vernon McAreavey.
Mark DeSchepper appeals the circuit court's determination
that the Minnehaha County Board of Commissioners (County)
properly granted two drainage permits to Jason and Vernon
McAreavey (McAreaveys). DeSchepper also claims that the court
erred in granting summary judgment dismissing his claims for
damages, injunctive relief, and abatement of nuisance against
the McAreaveys and the County. We affirm.
The McAreaveys and DeSchepper own land in and around Twin
Lake, a small lake located in Clear Lake Township in rural
Minnehaha County. Twin Lake was originally comprised of north
and south bodies of water, but the two are now joined into
one contiguous lake. Twin Lake lies mostly on Section 17 of
Clear Lake Township and measures approximately 341 acres.
Smaller portions of Twin Lake and its 979-acre watershed
extend onto Sections 16, 18, 19, 20, and 21. DeSchepper owns
and farms land on the southwest quarter of Section 17. The
McAreaveys own and farm the northwest quarter of Section 17
and the northwest quarter of Section 20 on the southern edge
of Twin Lake. The State owns the east half of Section 17
where Twin Lake is predominantly located.
The McAreaveys installed drain tile on their property in 2008
and 2009. The drain tile installed by the McAreaveys
consisted of four, six-inch pipes designed to drain water
from their crop land into or in the direction of Twin Lake.
The tiles are perforated tubes buried approximately three
feet below the ground's surface. All the tile, including
the outlets, lie entirely on the McAreaveys' land: three
on the southern edge of Twin Lake, and the fourth on the
northern portion of Twin Lake. The northern outlet is
submerged by Twin Lake, which has engulfed a portion of the
McAreaveys' land along Twin Lake. The other three outlets
have also at times been submerged by Twin Lake.
Before constructing the 2008 tiling, the McAreaveys applied
to the County for a drainage permit. This application was
approved by a County administrative official without prior
notice to DeSchepper. The McAreaveys installed the 2009
tiling without requesting a permit from the County. The
McAreaveys subsequently sought approval of the 2009 tiling,
but their application was denied by the County.
In 2011 and 2012, the McAreaveys submitted two additional
drainage permit applications to the County: ADP 11-81 and ADP
12-142. ADP 11-81 sought permission to expand the 2008 and
2009 drain tile by adding a system of smaller tile to run
lateral to the previously installed tile. ADP 12-142 sought
approval of all the 2008 and 2009 tiling, including the still
unapproved 2009 tiling. DeSchepper was given notice of both
applications and objected to the permit requests. Both
applications were considered and approved by the County at
brief public hearings on August 9, 2011 and September 12,
DeSchepper separately appealed the County's approvals of
the McAreaveys' two drainage permits to the circuit
court. DeSchepper also filed an action for declaratory
judgment against the McAreaveys and the County, alleging that
the drainage permits issued by the County for the 2008 tiling
were null and void due to a of lack of notice.
DeSchepper's also sought injunctive relief, claims for
nuisance and trespass against the McAreaveys, and an inverse
condemnation claim against the County. DeSchepper's
actions were consolidated before the circuit court.
The McAreaveys and the County moved for summary judgment on
all of DeSchepper's claims, except the drainage permit
appeals. The circuit court dismissed DeSchepper's claim
for damages explaining that DeSchepper could not prove legal
causation absent expert testimony showing that the
McAreaveys' drain tile was a substantial factor in
causing Twin Lake to rise. The court also determined that the
request for a declaratory judgment was rendered moot by the
County's approval of ADP 12-142 following proper notice
and hearing. The circuit court determined that despite the
lack of causation evidence to support damages, summary
judgment was premature on the equitable claims for injunctive
relief and nuisance abatement.
In July 2016, the circuit court heard DeSchepper's
appeals of ADP 11-81 and ADP 12-142 at a trial de novo. The
principal issue was whether the McAreaveys' drain tile
had increased the amount of water drained into Twin Lake.
Both parties offered testimony during the trial.
DeSchepper offered testimony from geologist Timothy Kenyon.
Kenyon testified that the Twin Lake basin has a non-permeable
floor, so there is no outlet for any additional water drained
into Twin Lake from the McAreaveys' land. Kenyon believed
that the installation of drain tile on the McAreaveys'
land resulted in a net increase of water flowing into Twin
Lake, despite acknowledging that he had not attempted to
measure the amount of water flowing into Twin Lake from the
McAreaveys' drain tile and could not quantify the flow.
Kenyon was unable to provide an opinion whether the drain
tile was a substantial factor in causing the level of Twin
Lake to rise.
The McAreaveys and the County presented testimony from Dr.
Gary Sands, an agricultural engineer. Dr. Sands testified, to
a reasonable degree of scientific probability, that the
McAreaveys' drain tile did not increase the water yield
into Twin Lake. Dr. Sands made this determination using the
water balance equation, which calculates hydrologic balance
and considers factors such as precipitation, evaporation,
plant transpiration (the amount of moisture carried from
plant roots, through the plant, and released into the
atmosphere), surface runoff, changes in soil moisture, deep
seepage, and any artificial drainage. Dr. Sands noted that
even though there was a possibility that the McAreaveys'
tile increased water flow into Twin Lake, the more probable
scenario was that the tile actually decreased
¶ow into the lake.
Both parties presented lay testimony on the question whether
the McAreaveys' drain tile had increased the water
draining into Twin Lake. DeSchepper testified that he
believed the drainage tile system was increasing the amount
of water draining into Twin Lake but conceded that he could
not quantify any increase. DeSchepper also acknowledged that
(1) heavy precipitation in 2011 made it difficult to account
for the impact of the tile during that time, (2) Twin
Lake's water levels started to rise in 1999 before the
McAreaveys installed the drain tile, and (3) Twin Lake's
water levels had decreased since 2011. Jason McAreavey
(Jason) claimed that the drain tile had not increased the
drainage into Twin Lake. He noted that since installing the
tile, he was farming more of his land adjacent to Twin Lake
because the lake had receded six feet since its peak in 2011.
Jason also testified that it was contrary to his interests to
increase the amount of water draining into Twin Lake, as that
would have an adverse impact on his land bordering the Lake.
Following the trial, the circuit court entered a memorandum
opinion affirming the County's approval of the
McAreaveys' permit applications. The circuit court found
that the evidence did not show that the McAreaveys' drain
tile increased the amount of water draining into Twin Lake.
The court also found that DeSchepper had failed to prove the
additional water in Twin Lake was attributable to the drain
The McAreaveys subsequently renewed their motion for summary
judgment on the claims for injunctive relief and abatement of
a nuisance. The circuit court granted summary judgment on
both claims, incorporating by reference the court's prior
summary judgment ruling and the decision affirming the County
DeSchepper appeals the circuit court's decision, raising
several issues that we restate as follows:
1. Whether the circuit court erred in affirming the
County's approval of the McAreaveys' two drainage
applications under the civil law rule.
2. Whether the County's assertion of jurisdiction over
ADP 12-142 was infirm because of bias, self-interest, or
inherent conflict of interest.
3. Whether the circuit court erred in granting summary
judgment on DeSchepper's claim for damages after
determining that expert testimony was necessary to show
4. Whether the circuit court erred in granting summary
judgment on the McAreaveys' claims for injunctive relief