JUNDT v. Fuller

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2007 SD 62

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

DONALD JUNDT and VIRGENA JUNDT, Petitioners,

v.

THE HONORABLE A. P. FULLER,
Circuit Judge of the Seventh Judicial
Circuit, Respondent,

and

SOUTH SIDE DITCH & WATER
COMPANY and REINHOLD A. EISENBRAUN, Intervenors.

* * * *

ORIGINAL PROCEEDING

* * * *
JESS M. PEKARSKI of
Costello, Porter, Hill, Heisterkamp,
Bushnell & Carpenter
Rapid City, South Dakota Attorneys for petitioners.

NEIL FULTON of
May, Adam, Gerdes & Thompson
Pierre, South Dakota Attorneys for respondent.

MICHAEL M. HICKEY and
SARA L. LARSON of
Bangs, McCullen, Butler, Foye & Simmons Attorneys for intervenor
Rapid City, South Dakota South Side Ditch & Water.

REINHOLD A. EISENBRAUN Pro se intervenor.

* * * *
CONSIDERED ON BRIEFS
ON APRIL 12, 2007

OPINION FILED 6/27/07
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GILBERTSON, Chief Justice

[¶1.] Petitioners Donald and Virgena Jundt filed a petition for writs of

mandamus, prohibition and certiorari against the respondent, the Honorable A.

Peter Fuller, Judge of the Circuit Court for the Seventh Judicial Circuit, seeking to

prevent the remand of an eminent domain action for enforcement of a water permit

to the South Dakota Water Management Board (the Board). This Court issued an

alternative writ of prohibition, the respondent filed a response and the petitioners

filed a reply. Based upon these submissions, we grant the petitioners a peremptory

writ of prohibition.

FACTS

[¶2.] On March 15, 2005, the Board granted the petitioners a water permit

authorizing them to divert water from the South Side Ditch diversion point along

Rapid Creek in Pennington County. Although no appeal was taken from the

decision granting the permit, South Side Ditch and Water Company (South Side)

refused to allow the petitioners to use the South Side Ditch. The petitioners then

commenced eminent domain proceedings in circuit court to obtain use of the ditch

as authorized by their permit. 1 Rather than proceeding with the eminent domain

case, the respondent entered the following order of remand on December 4, 2006:

1. It appears that eminent domain may be an appropriate manner of proceeding
in circuit court to enforce water rights in a case such as this. See generally
SDCL 46-8-1 (any person may exercise right of eminent domain to acquire as
public use any property or rights necessary for application of water to
beneficial use); SDCL 21-35-1 (owners of water rights covered by chapter on
eminent domain).
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[I]t is hereby

ORDERED, ADJUDGED and DECREED that
[petitioners'] application of South Dakota Water Permit
No. 2526-2 be transferred and remanded back to the
South Dakota Water Management Board with
instructions to provide adequate Findings of Fact and
Conclusions of Law, particularly on the issue of whether
[petitioners] are considered "persons" under SDCL 46-5-
34.1, as the statute existed in 1992. The attached
documents to this Order, as well as any other documents
the Board deems appropriate, shall be considered by the
Board upon remand.

According to the respondent's brief, he ordered the remand because the petitioners'

status under SDCL 46-5-34.1 was relevant to their eligibility for a water permit and

board findings and conclusions on the issue appeared to be based upon "incorrect

facts."

[¶3.] Following the entry of the respondent's order, the petitioners applied

to this Court for various writs, arguing that the respondent did not have jurisdiction

to "remand" their water dispute to the Board. The petitioners sought a writ to

prevent the remand and compel the respondent to proceed with the eminent domain

case in circuit court. This Court entered an alternative writ of prohibition ordering

the respondent to refrain from any acts in furtherance of his order of remand. The

writ further ordered the respondent to show cause why a peremptory writ should

not issue directing him to vacate his order of remand and to proceed with the

eminent domain case as an original action in circuit court. The respondent has now

filed his response to the order to show cause and the petitioners have filed their

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reply. 2

ANALYSIS

[¶4.] The respondent argues that he and the Board shared concurrent

jurisdiction to resolve the dispute between the petitioners and South Side and that

he properly deferred to the Board's expertise by referring the matter to the Board

pursuant to the doctrine of primary jurisdiction. That doctrine was most recently

explained in Dan Nelson, Automotive, Inc. v. Viken, 2005 SD 109, ¶ 7, 706 NW2d

239, 242:

Primary jurisdiction questions arise when both an
administrative agency and a court have authority to hear
an initial dispute. [Mordhorst v. Egert, 88 SD 527, 531 –
532, 223 NW2d 501, 504 (1974)]. When both entities have
authority to hear the initial dispute, the doctrine of
primary jurisdiction "determines whether the court or the
agency should make the initial determination." Id.
(citation omitted).

Under the doctrine:

courts will not determine a controversy involving an issue
within the jurisdiction of an administrative agency prior
to the resolution of that question by the agency involved,
when it is a matter that involves the exercise of discretion
requiring the special knowledge, experience, and services
of the administrative body; when it involves a
determination of technical and intricate matters of fact; or
when a uniformity of ruling is essential to comply with
the purposes of the regulatory statute being administered.

2. Our alternative writ also afforded each defendant in the eminent domain case
an opportunity to intervene in these writ proceedings and to file a response.
Two of those defendants, including South Side, filed an additional response
which we have also considered in our review of this matter.

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Northwestern Bell Tel. Co. v. Chicago and North Western Transp. Co., 245 NW2d

639, 642 (SD 1976)(citing Northwestern Bell Tel. Co. v. Hawkeye State Tel. Co., 165

NW2d 771 (Iowa 1969)).

[¶5.] As the respondent submits, an argument does appear to exist under

Romey v. Landers, 392 NW2d 415 (SD 1986) that the Water Management Board

shared jurisdiction with the circuit court to resolve the initial dispute between the

petitioners and South Side. In Romey, this Court affirmed a circuit court order

upholding the Board's declaratory ruling directing the removal of a series of dams

constructed in violation of a party's irrigation rights under a permit. In reaching its

decision, this Court affirmed the Board's authority to issue declaratory rulings that

also require "coercive relief." The petitioners here might similarly have sought

"coercive relief" from the Board to enforce their water permit rather than

proceeding in circuit court with their eminent domain action.

[¶6.] Despite the existence of a possible administrative remedy for the

petitioners, the respondent did not dismiss, stay or suspend their circuit court case

to allow them to pursue that remedy. These would be typical methods for a court to

exercise the doctrine of primary jurisdiction. See Birmingham Hockey Club, Inc. v.

National Counsel on Compensation Insurance, Inc., 827 So2d 73, 84 (Ala

2002)(quoting Jones Truck Lines, Inc. v. Price Rubber Corp., 182 BR 901, 911

(MDAla 1995)(under doctrine of primary jurisdiction, the court may retain

jurisdiction or may dismiss the case without prejudice and also has the option of

staying the proceedings, retaining jurisdiction and referring the matter to the

agency for an administrative ruling)). Instead, the respondent attempted to

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transfer and remand the petitioners' original water permit application back to the

Board for consideration of additional evidence and the entry of "adequate" findings

of fact and conclusions of law on a new legal issue relevant to their entitlement to

the permit. This amounted to an order for the Board to reconsider or vacate its

original decision granting the permit. However, at that point, the Board no longer

had authority to reconsider its decision. Furthermore, it may have been

inappropriate for the Board to consider the additional evidence referenced by the

respondent.

[¶7.] Nothing in South Dakota's Administrative Procedures Act authorizes

an administrative agency to reconsider a decision in a contested case.3 See SDCL

ch 1-26. However, "administrative agencies have the inherent authority to correct

adjudications which appear to be erroneous." Stearns-Hotzfield v. Farmers

Insurance Exchange, 360 NW2d 384, 389 (MinnCtApp 1985)(citing Anchor Casualty

Company v. Bongards Cooperative Creamery Association, 91 NW2d 122 (Minn

1958); State ex rel. Turnbladh v. District Court, County of Ramsey, 107 NW.2d 307

(Minn 1960)). There are, however, restrictions on that authority. One restriction is

timeliness. Generally, an agency's "right to reverse an earlier, erroneous

adjudication lasts until jurisdiction is lost by appeal or until a reasonable time has

run, which would at least be co-extensive with the time required by statute for

3. Although SDCL 1-26-34 authorizes a circuit court to order an agency to take
additional evidence in a case, this is in the context of an appeal from an
agency decision. See SDCL 1-26-34 (application for leave to present
additional evidence must be made before date set for hearing on appeal from
agency's final decision). Here, there was no appeal of an agency decision
before the respondent.

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review." Stearns-Hotzfield, 360 NW2d at 389 (citing Anchor Casualty, 91 NW2d at

126; Turnbladh, 107 NW2d at 313). Accord State, ex rel. Harpley Builders, Inc. v.

Akron, 584 NE2d 724, 725 (Ohio 1992)(an agency retains jurisdiction to set aside its

own decision until a party appeals or the time to file an appeal has passed); Wiles v.

Department of Labor and Industries of State, 209 P2d 462, 465 (Wash 1949)(agency

has right to withdraw an order made and entered by it providing withdrawal is

made before the time for appealing such order has expired). Once an agency's

adjudication has become final it is no longer subject to reconsideration. See City of

Philadelphia Police Dept. v. Civil Service Com'n of the City of Philadelphia, 702 A2d

878, 880 (PaCommwCt 1997)(tribunal loses jurisdiction to change order once it

becomes final).

[¶8.] Another restriction on reconsideration of an administrative decision

relates to the grounds for seeking reconsideration. When the grounds involve the

consideration of additional evidence, the agency should determine whether the

evidence is merely cumulative to that before it at the time its decision was rendered

and whether the evidence was in existence and at hand at the time of the original

hearing. 4 See Stepan v. J.C. Campbell Co., 36 NW2d 401, 404 (Minn 1949). If the

evidence is cumulative or was in existence, there is no abuse of discretion in

denying reconsideration. See id.

4. These standards are similar to those applied by a circuit court in an appeal in
ruling on a motion to present additional evidence to an agency. See SDCL 1-
26-34 (if it is shown to the satisfaction of the court that the additional
evidence is material and that there were good reasons for failure to present it
in the proceeding before the agency, the court may order that the additional
evidence be taken before the agency).
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[¶9.] Both timeliness and the grounds for reconsideration weighed against

the Board's reconsideration of the water permit application at issue here. The

Board's original decision granting the permit was issued on March 15, 2005 and the

time for appealing the decision expired thirty days later. SDCL 1-26-31. No appeal

was ever filed. Thus, the decision became final and was no longer subject to

reconsideration by the Board by the time the respondent attempted to remand it

back to that body in December 2006. Moreover, the record does not reflect any

consideration of whether the evidence the respondent wanted the Board to review

was before the Board at the time of its original decision or whether that evidence

was in existence and available at that time. If it was, it would have been an abuse

of discretion for the Board to reconsider the evidence.

[¶10.] In addition to the restrictions on reconsideration of administrative

decisions, separation of powers considerations also weigh against the propriety of

the respondent's order of remand. This Court touched upon the issue of separation

of powers between administrative agencies and reviewing courts in Romey, supra

when it held that an agency did not encroach on the judiciary when it enforced a

permit that it had previously issued. This case presents a converse situation of

judicial encroachment on an agency prerogative. As explained in Perkins v.

Department of Medical Assistance, 555 SE2d 500, 502 (GaCtApp 2001):

It must be remembered that the constitutional separation
of powers between the executive branch and the judicial
branch prevents courts from involvement in review of
administrative decisions unless there exists specific
legislative empowerment for the judiciary to act regarding
executive branch functions; when such delegation of
power exists, appeals to the courts must follow such
statutory procedures as a condition precedent to obtaining

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subject matter jurisdiction, because such conferred
powers over executive branch functions are statutorily
circumscribed.

[¶11.] Here, the administrative decision issuing the petitioners' water permit

was never appealed. Yet, the respondent has attempted to review that decision,

reverse it and remand it for reconsideration when the statutory procedures that are

a condition precedent for such review were never followed. This violates separation

of powers principles as explained in Perkins.

[¶12.] An unappealed administrative decision becomes final and should be

accorded res judicata effect. See Joelson v. City of Casper, Wyo., 676 P2d 570, 572

(Wy 1984)(if judicial review is granted by statute and no appeal is taken, the

decision of an administrative board is final and conclusive); Pinkerton v. Jeld-Wen,

Inc., 588 NW2d 679, 680 (Iowa 1998)(final adjudicatory decision of administrative

agency is regarded as res judicata). Rather than acting as a reviewing court and

attempting to direct the Board to reconsider its issuance of the petitioners' water

permit, the respondent should have considered issuance of the permit as a final

decision and should have proceeded to consider the merits of the petitioners'

eminent domain action to enforce it. See Joelson, supra (when courts are called

upon to enforce an administrative order that has become final, only those questions

concerning the order's violation may be adjudicated and not questions which go to

the validity of that order).

[¶13.] Based upon the foregoing analysis, we hold that the respondent

exceeded his jurisdiction and authority by attempting to remand the petitioners'

eminent domain case to the Board for reconsideration of the petitioners' water

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permit application. While the respondent contends that the petitioners have an

adequate legal remedy for any such error through litigation of the eminent domain

proceedings they initiated and an appeal, he ignores that that litigation is at a

standstill because of the remand and that there is no right of appeal from an order

of remand to an administrative agency. Anderson v. Nash Finch Wholesale Fruit &

Grocery Co., 88 SD 59, 215 NW2d 125 (1974). Therefore, we deem issuance of a

writ necessary.

[¶14.] The petitioners seek writs of mandamus, prohibition and certiorari.

Thus, a question remains as to the appropriate writ to issue. It has been held that:

"a court may issue a writ [of prohibition] to confine a lower court to its proper

jurisdiction, to compel the court to exercise a jurisdiction properly before it, or to

prevent a clear abuse of discretion by the lower court." In re State of S.D., 692 F2d

1158, 1160 n 3 (8thCir 1982). See also In re State, 180 SW3d 423, 425 (TexApp

2005)(writ of prohibition operates like injunction issued by superior court to control,

limit, or prevent action in court of inferior jurisdiction). Thus, in Swezy v. Bart-

Swezy, 866 So2d 1248 (FlaDistCtApp 2004), the Florida District Court of Appeal

granted a writ of prohibition to prevent a circuit court's referral of a child support

matter to a general master in violation of that state's procedural requirements.

More recently, this Court issued its own writ of prohibition on January 18, 2007

directing a circuit court to vacate an invalid writ of prohibition that it had

previously issued in a case. See Gray v. Gienapp, 2007 SD 12, 727 NW2d 808.

Accordingly, we hold that a writ of prohibition is the appropriate remedy for the

respondent's actions here.

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[¶15.] For the foregoing reasons, we grant the petitioners a peremptory writ

of prohibition directing the respondent to vacate his order of remand and to proceed

with consideration of the petitioners' action in circuit court.

[¶16.] SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices,

concur.

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