972 N.W.2d 477
S.D.2022Background
- Crowned Ridge Wind II applied to the South Dakota PUC for a permit to build a 132-turbine, ~300.6 MW wind farm across Codington, Grant, and Deuel Counties; local county zoning limits included 45 dBA and 30 hours/year shadow-flicker caps for non-participating residences.
- Six nearby non-participating landowners (Intervenors) obtained party status and opposed the permit, citing projected ambient noise and shadow flicker impacts (and asserting property-rights and takings theories).
- The PUC held a contested-case evidentiary hearing with expert testimony and studies concluding the Project would meet county noise/flicker limits and pose no health/welfare risk; PUC issued a permit with 49 conditions including the county limits (45 dBA; 30 hours/year) unless waived by a homeowner.
- Intervenors appealed to circuit court arguing (inter alia) the PUC was required to promulgate statewide rules setting maximum noise/flicker standards, that issuance created a de facto easement, and that permitting effected uncompensated takings or foreclosed nuisance claims; circuit court affirmed the PUC.
- The South Dakota Supreme Court affirmed the circuit court, rejecting claims that (1) the PUC was required to promulgate specific noise/flicker rules, (2) the permit created an easement or per se taking, (3) equal protection was implicated by case-by-case limits, or (4) nuisance-immunity principles produced a compensable taking.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PUC must promulgate rules setting statewide maximum noise and shadow-flicker standards | PUC statute and legislative findings require rules defining “minimal adverse effects” (max levels for noise/flicker) for all permits | SDCL 49-41B-35 is enabling (may adopt rules); statute does not mandate specific substantive standards; PUC may regulate case-by-case under SDCL 49-41B-22 | No. PUC was not required to promulgate specific noise/flicker rules; it may make case-specific determinations and condition permits on county limits |
| Equal protection challenge to ad hoc, differing permit conditions | Different limits (e.g., Prevailing Wind Park) show arbitrary, unequal treatment of similarly situated applicants | PUC is an administrative agency conducting individualized contested hearings; differing conditions can reflect case-specific evidence and legitimate policy shifts | No cognizable equal protection violation; Intervenors failed to develop a colorable claim |
| Whether issuance created a "de facto easement" (light/air discharge) | Shadow flicker is a discharge of light/heat and grant of permit creates an easement allowing Crowned Ridge to affect Intervenors’ property | PUC permit does not transfer or create property interests in third-party land; shadow flicker is not a statutory "discharge of light" for easement purposes | No. Operation of turbines does not constitute a discharge under SDCL 43-13-2(8); permit did not create an easement (see companion Ehlebracht decision) |
| Whether the permit constitutes a per se taking (physical invasion or regulatory taking) | Permit authorizes effects (noise/flicker) on private land without consent—alleged per se physical taking analogous to Cedar Point or Loretto | No physical occupation or government-authorized entry; no Lucas total wipeout, no Penn Central analysis pleaded, no exaction under Nollan/Dolan | No. Intervenors failed to establish a recognized takings theory; permit is not a per se physical or regulatory taking |
| Whether permitting forecloses future nuisance claims and thus effects a compensable taking | By authorizing the facility under statute and permit conditions, PUC forecloses nuisance remedies—analogous to Iowa’s Bormann, which treated statutory nuisance immunity as a taking | South Dakota law does not treat the right to maintain a nuisance as an easement; Bormann is an outlier; SD statute precluding nuisance for acts under express authority does not itself effect a taking | No. Foreclosure of nuisance claims under SDCL 21-10-2 does not constitute a taking here; Intervenors did not identify infringement of a recognized property right |
Key Cases Cited
- Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (per se physical occupation/taking where government requires a permanent physical invasion)
- Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (per se total regulatory taking when all economically beneficial use is eliminated)
- Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (ad hoc multi-factor test for regulatory takings)
- Nollan v. California Coastal Comm’n, 483 U.S. 825 (exaction doctrine—essential nexus requirement)
- Dolan v. City of Tigard, 512 U.S. 374 (exaction doctrine—rough proportionality requirement)
- Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (access regulation that appropriates a right to invade property can be a per se physical taking)
- Ehlebracht v. Deuel County Bd. of Adjustment, 972 N.W.2d 464 (S.D. 2022) (shadow flicker is not a statutory "discharge of light" creating an easement)
- Krier v. Dell Rapids Twp., 709 N.W.2d 841 (S.D. 2006) (South Dakota constitutional "damage" theory for state takings requires injury peculiar to the owner)
- Boever v. South Dakota Bd. of Accountancy, 561 N.W.2d 309 (S.D. 1997) (legislative delegation requires an intelligible principle guiding agency rulemaking)