Water advocates ask state Supreme Court to block city of Custer discharges into French Creek

Water quality advocates in Custer County want the state Supreme Court to make the county enforce a voter-backed ordinance barring the discharge of treated wastewater into a creek by the city of Custer.

The city studied four options for discharge and chose French Creek. Since 1972, the city had discharged treated wastewater into Flynn Creek. But rebuilding its discharge pipe for Flynn Creek would be too expensive, the city and its contractor determined in 2020, and there were environmental concerns with the other options.

In 2021, the state issued the city a permit to discharge into French Creek upon completion of the upgrades to its wastewater treatment facility. The upgrades are not finished yet.

That happened before some county voters knew that the city had chosen French Creek as its discharge point.

When a group of concerned Custer County residents learned of the plan to switch, they worked to put an ordinance on the county ballot declaring that any discharge into French Creek would count as a public nuisance.

Last June, the ordinance passed with a final tally of 809 for, 609 against.

French Creek advocates: City chose without consultation

The county hasn’t enforced the ordinance. A citizen group called Preserve French Creek filed a “writ of mandamus” after the vote in 2023, a legal maneuver meant to force government officials – in this case the county’s state’s attorney – to fulfill legal obligations.

A local judge agreed with the county in the ensuing legal dispute. State law preempts local law, the judge ruled, so the city’s choice of French Creek was unimpeachable by virtue of its listing on the state permit. 

Preserve French Creek appealed to the state Supreme Court. Its position is that a permit from the state does not carry the same legal weight as a state statute in the wastewater situation. 

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The city had four options and picked one without warning citizens and giving them a chance to comment, according to Preserve French Creek’s attorney, Steven Beardsley. That ought to give the county enough regulatory wiggle room, he said, to protect one of those options from becoming the designated drop zone for treated wastewater by a city within its border.

State law may trump local law, but Beardsley told the high court on Thursday that state law didn’t tell the city which creek to pick before asking for the permit.

“The location is not part of the statute,” he said. “They’re the ones that chose French Creek, not this agency.”

Even if the law gives the secretary of the Department of Agriculture and Natural Resources (DANR) the authority to issue permits after a comment period, Beardsley said, the city should’ve given residents proper notice.

The notice about the discharge permit came from DANR, and Beardsley said that it wasn’t good enough to double as a warning that the city had chosen French Creek specifically. The state’s administrative procedures require “actual notice of the action in question to the persons potentially affected by it,” he said, a step beyond publishing a notice in a legal newspaper.

“They published it in the Custer Chronicle, and that goes out to about 12 people,” Beardsley said. “Now, that’s a slight exaggeration. It’s more than that, but it’s not actual notice.”’

The Custer County Chronicle’s actual circulation is around 1,600.

Chief Justice Steven Jensen asked Beardsley how the notice issue implicates the city, however. 

“Aren’t you really just saying, ‘Well, that order wasn’t properly entered by the DANR, and you should set that aside?’ Don’t you have to go back to the DANR to do that?”

Beardsley said no, citing a South Dakota case wherein the high court ruled that “actual notice” means taking “reasonable precautions” to make sure citizens have an opportunity to object to the location of a potential nuisance.

“State law says you can have wastewater permits or wastewater plants, there’s no objection to that,” Beardsley said. “The objection is they didn’t take reasonable precautions before they chose French Creek.”

City: Take it up with lawmakers

Jacob Stewart, representing the city of Custer, argued that notice was properly given in 2020. No one commented on the permit to the DANR, he said.

When asked about “actual notice” by Jensen, Stewart said that issue wasn’t addressed in the local courtroom. As such, he told Jensen, it ought not be considered in the Supreme Court appeal. 

“There was never any discussion or argument at the lower court level as to the express actual notice,” he said.

That issue prompted a question from Justice Janine Kern. What legal remedy might be available to Custer County voters who object so strenuously to French Creek discharge that they were willing to pass an ordinance barring it?

“Your only remedy is to wait and see if something goes wrong or happens outside the scope of the permit?” Kern asked. “There’s no way to step back or seek any form of relief?”

“I believe that is the case, your honor,” Stewart said.

The permit would come up for renewal in five years, he said. If there are questions about what sort of notice ought to be given in situations where a permit might create a nuisance, he said, it isn’t one for the justices.

Lawmakers should decide the bounds of such notices, he said.

“At the end of the day, all of this needs to be recoursed in front of the Legislature, not this court,” Stewart said. 

Justices: How can a county overrule the state?

In his rebuttal, Beardsley argued otherwise. “Actual notice” was necessary.

Justice Patricia DeVaney wondered aloud what it might mean, though, if the high court accepted his arguments and ordered the county to enforce the nuisance ordinance. 

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If the ordinance conflicts with a legally authorized state permit, she asked, “would not the city then be able to come and make a claim that that’s an improper enforcement of an ordinance?”

Beardsley said he believes the county has the authority to enforce, as the discharge permit impacts a larger swath of land than the city has to rule over.

“It’d be one thing if we’re putting it in a pond just in the city,” he said. “They’re putting it in French Creek that goes right on through the entire county. So if the county says, ‘you can’t do that, because we have an ordinance that you can’t do that,’ then the city had better think twice,” he said.

As far as leaving questions on location to the Legislature, Beardsley repeated his argument that lawmakers had endorsed “actual notice” though its passage of laws codifying administrative procedures.

“There is no possible way that the Legislature is going to say ‘we’re now going to make it part of the statute, the location of where wastewater should go,” he said. “What the Legislature did, though, was they said, ‘You got to give actual notice.’”

The justices will issue a ruling in the case at a later date.