*1 finding that the search was valid due to Consequently, safety officer concerns.
there no reason on would be to remand
this issue. circuit should court’s order
be affirmed. SABERS, Justice, joins this
special writing.
CLARK subdivi Dakota,
sion of the State South
State of Dakota Re South Petroleum Compensation Fund,
lease Plaintiffs Appellants, EQUIPMENT CORPORATION,
SIOUX corporation,
a South Dakota Defen
dant, Party Appel Third Plaintiff and
lee, Corporation Snap-Tite,
Eaton Party Third Defendants Appellees.
No. 24462.
Supreme Court South Dakota.
Argued Feb. July
Decided *2 K. Gru- K. Grunewaldt Judith
Judith LLC, Pierre, Law, South Prof. newaldt Dakota, plaintiff appel- Attorney for Comp. Release lant SD Petroleum R. Richard Tieszen Naomi Cromwell Pierre, Office, Law Prof. Tieszen LLC Dakota, Attorneys ground South is a tanks. County. appellant political Clark subdivision of the State of South Dakota. owns real used Austin, Hopper Arthur Hinderak- M. *3 shop. agen- as a highway PRCF is a state Haekett, er, Bratland, Hopper, Strait & cy petroleum that reimburses tank owners Watertown, Dakota, Attorneys South for for certain costs of remediating the release defendant, party appel- third and of and petroleum petroleum-containing Equipment. lee Sioux products into the environment. May, Adam, Robert B. Anderson of 1991, County In November con- [¶ 3.] Pierre, & Thompson, Gerdes LLP South Equipment tracted with Sioux to install Dakota, Attorneys party for third defen- storage the fuel and dispensing system, appellee Corporation. dant and Eaton 10,000 which included three above- gallon Parsons, Jr., Johnson, Ronald A. of Hei- tanks, ground fuel piping, and related Janklow, Johnson, depriem, & Abdallah equipment County’s for the highway de- LLP, Falls, Dakota, Sioux South Attor- partment. scope The of the work was for neys party appel- third defendant Equipment’s permit ap- described in Sioux Snap-Tite, Inc. lee plication, which was submitted to the Department South Dakota of Environment ZINTER, Justice. (DENR). and Natural ap- Resources plication Sioux Equipment [¶ 1.] installed fuel described the work as follows: dispensing system real owned (County). Clark SCOPE OF WORK County and the State of South Dakota Petroleum Release Compensation Fund Existing Tanks and Re- pump to be (PRCF) Equipment sued Sioux when the Disposed moved and Separate under system leaked and released fuel into diesel ... Contract. Tanks shall consistent environment. Equipment Sioux 10,000 gal 11' X 15' Single New Wall 3— for summary judgment moved on the Aboveground tanks, Steel shall tanks ground ten-year of repose statute #2, Fuel, store Class Diesel other County’s barred and PRCF’s claims. The Gasoline_Esti- shall Class # store granted Equipment’s circuit court Sioux project mated cost of this (Excluding motion, concluding Equipment’s that Sioux Excavation) $15,000. “an improvement” work was real prop- (Emphasis original). Sioux When erty meaning within the of the statute of work, Equipment begin arrived to its repose. The circuit court also concluded already site had been excavated. There is that the federal Comprehensive Environ- no dispute Equipment Sioux did Response Compensation mental and Lia- perform excavation, pre- (“CERCLA”) and that a bility Act preempted state existing system was limitations, removed before but not the statute Sioux Equipment arrived. repose. We affirm. Equipment’s [¶ 4.] Sioux installation I substantially completed by January with Sioux Equipment [¶ 2.] is in the busi- submission installing petroleum storage ness of Compliance Certificate of to DENR. equipment, including distribution above- Sioux did Equipment no further work 4,000 repose. County and PRCF not statutes of notified of a it was until the site1 appeal both conclusions. 2003. As a February of fuel leak in gallon in- leak, County and PRCF of this result II expenses. remediation significant curred reviewing grant “In County and PRCF asserts PRCF ... must summary judgment we denial of in the future. expenses additional will incur moving party dem determine whether 2006, County and February any genuine issue onstrated the absence negli- Equipment sued Sioux fact and entitle [established] of material war- express implied gence, breach a mat on the merits as judgment ment to warranty of ranties, implied and breach Wedmore, *4 v. ter of law.” Behrens County purpose. particular for a fitness ¶ 555, 79, 18, 698 N.W.2d SD “ $139,985.34 damages pre- in and sought resisting summary judgment ‘[T]hose sought PRCF interest. judgment place they will be able show [must] for remediation $182,113.64 damages in in the record at trial sufficient evidence in- costs, prejudgment fees and attorney the elements on findings on all support terest. ” proof.’ the burden of they which for sum- moved Equipment Sioux [¶ 6.] Sch., Bordeaux v. Shannon the affirmative asserting mary judgment, ¶ 123, 117, 14, 127 (quoting 707 N.W.2d SD ten-year statute of that a defense Glover, Indus., Inc. v. 2002 SD Chem-Age respond- County and PRCF expired.2 had (citation ¶ 122, 18, 652 N.W.2d issue that the statute arguing ed omitted)); Corp. Celotex Ca see also jury; fact for the question involved trett, 317, 322-23, 106 S.Ct. 477 U.S. i.e., Equipment’s work whether Sioux (1986) (stating 91 L.Ed.2d within property to real improvement” “an judgment is man entry summary meaning of the statute. make a party who fails to against dated that if the stat- alternatively argued the exis to establish showing sufficient preempted it was repose applied, par to that element tence of an essential imposing lia- federal statute CERCLA —a case, will bear the party and on which ty’s materials releasing hazardous bility for trial). general Mere proof burden into the environment. set that do not allegations and denials court concluded The circuit issu prevent facts will not specific forth improve- work was summary judgment. Casazza Sioux ance of therefore, the claim State, property, ment to 2000 SD repose. Fol- by the statute of was barred authority from fed- recent
lowing the most
III
CERCLA, the
interpretations
court
eral
applicable
15-2A-3 is
SDCL
that CERCLA
court also concluded
circuit
ten-year
provides
It
limitations,
but
statute
preempted state
third-party
brought
Equipment also
2. Sioux
when the Clark
occasion
1. There was an
Corpora-
Equipment
against
Eaton
Highway Department called Sioux
claims
manufacturers
May
complaining
warranty,
that a
Snap-Tite
to the site in
for breach of
tion
running properly.
dispensing pump was not
indemnity.
liability,
Both third-
product
pump and
Equipment
inspected the
each other.
party
cross-claimed
defendants
storage tank was low of
that the
determined
properly when
pump
run
and the
would
relevant
This visit is not
the tank was filled.
litigation.
period
completion
after substantial
the historical facts of
requires
this case
us
project
bring
improve-
an action for “an
legal concepts
consider
and “exercise
property:
ment” to real
judgment about the values that animate
damages
any legal principles,”
No action to recover
we
review
second de
injury
property
to real
...
... arising termination de novo. Id.3
construction,
any
out of
...
of an im-
Although
[¶
this Court has not de-
11.]
provement
may
to real
...
be
“improvement
fined an
property”
to real
any
brought against
person performing
15-2A-3,
the context of SDCL
most courts
furnishing
design, planning,
or
su-
considering the
adopted
issue have
what
pervision, inspection, and observation of
has been described as a “common sense
construction,
construction,
of such an
approach.”
Jamagin
v. Fisher Con-
improvement
years
more than ten
after
Int’l,
(Iowa
trols
apply that definition to determine whether
Id. at 36.
Sioux
work
an im
involved
State Farm Fire and Cas. v.
provement
property.
to real
This second
Aguila
the Minnesota Supreme Court
determination is a
question
mixed
of law
definition,
adopted the same
concluding
and fact because the historical facts are
established,
that an underground
gas
natural
pipeline
the rule of law will be estab
court,
system
improvement
lished
the
constituted an
to real
dispositive
and the
(Minn.
property.
issue is “whether ...
718 N.W.2d
rule of law as
884
2006).
applied to the
Similarly,
Supreme
established facts is or is
Court of
[favorably
Dorsey
applied
In re
Wisconsin
that definition in
satisfied].”
a case
Co., LLC,
Whitney
Trust
questioning
2001 SD
whether an underground oil
(citations
omitted).
471
pipeline
improvement
was an
to real estate
application
Because the
of a legal test to within
meaning
of the Wisconsin stat-
involving
questions
In such
requires
legal
cases
mixed
concepts
us to consider
in the
law and fact:
mix
judg-
of fact and law and to exercise
legal
ment about the values that animate
analysis
Where the
turns on the fact finder’s
"
principles
apply
‘experience
mainsprings
..we
the de novo stan-
with the
of hu-
”
conduct,'
essentially
man
it is
dard.
a factual
¶35, 6,
question
apply
clearly
Dorsey,
we
to which
erro-
In re
2001 SD
623 N.W.2d at
If, however,
(citations omitted).
question
neous standard.
"the
471
It
existing
Co.
unit.
is
clear that the
Fire Ins.
also
repose. United States
Co.,
system amounted to
improvement
an
Wesley
105 Wis.2d
E.D.
(1982).
[County]’s existing
There-
Notably,
property.
N.W.2d
fore,
apparent
present
it is
that in the
fa
petroleum
involved
case also
the work completed
[Sioux
case
that,
a matter of
court held
“as
cility. The
Equipment]
improvement
an
constituted
law,
pipeline
connected
when
[ ]
[County’s] property
contemplated
as
real
the ...
equipment
located on
by SDCL 15-2A-3.
improve
an
pipeline
became
property,
New
the ...
Id. The
property.”
ment to
essentially agree.
When
14.]
[¶
essentially
Supreme
adopted
Court
Mexico
site,
Equipment
at the
no
arrived
Iowa, Minneso
definition as the
the same
system
dispensing
According
existed.
Delga
ta,
Supreme courts.
and Wisconsin
document,
of the
scope
to the
work
what-
Socorro,
City
104 N.M.
dillo v.
system had
previously
ever
been
site
(1986). In
the court
Delgadillo,
P.2d 245
removed
con-
separate
had been
under a
enhance
improvement
as “the
defined
Equip-
The addition
tract.
of the Sioux
quality:
augmentation of value or
ment or
system,
County paid
ment fuel
for which
addition to or betterment
permanent
$15,000, clearly
the use of the
enhanced
capital
val
property
real
enhances its
property.
concede that
expenditure
and that
involves the
ue
involved
expenditure
the addition
money and
to make
designed
labor
money
Finally,
system
and labor.
the fuel
as
more
or valuable
useful
County’s property,
added value to
as
ordinary repairs.”4
from
Id.
distinguished
shop
county highway
dispens-
a fuel
with
P.2d at
worth
without
ing system is
more than one
*6
system.
See
104 N.M.
Delgadillo,
such
case,
the circuit
In this
[¶ 13.]
(noting,
parcel
at
723 P.2d at
“[a]
248
fac
cited some but not all of these
court
that has
is more
of land
service available
tors, ultimately
under the
concluding that
comparable parcel
than a
without
valuable
facts,
work
undisputed
Equipment’s
Sioux
service”).
such
meaning of
improvement
an
within the
was
PRCF, however, ar-
County and
[¶ 15.]
rea
15-2A-3. The circuit court
SDCL
Sioux
installation
gue
that
soned:
sys-
prior
the
replacement
was a mere
of
PRCF
[County]
County
the
contracted
To the extent
In this case
tem.
law,
argu-
their
Equipment]
undertake a
this as matter of
with
[Sioux
rejected
$15,000.
project
misplaced.
There is
is
substantial
ment
Courts
that a
of analo-
presented
suggestion
replacement
the work
the
no evidence
as an
any
qualify
in
infrastructure cannot
Equipment]
gous
[Sioux
performed
Delgadillo
the
replacing
in
an
involved
way
capacity
improvement.
the
of
Co.,
"improvement.”
the word
Id.
Den Hul v.
Elev.
definition of
In Van
Baltic Farmers
(8th Cir.1983),
Eighth Cir-
F.2d 504
the
applied
essentially
defini-
It
an
identical
Appeals
that instal-
Iowa, Minnesota,
cuit Court
determined
adopted by
tion as
the
gas
underground
carry LP
pipe
of an
lation
Courts,
Supreme
New
Mexico
Wisconsin
on one
the street to a
from a tank
side of
examining:
or ad-
"whether the modification
dryer
street was
grain
on the other side of the
property, in-
the
dition enhances
use of
improvement
property
under
an
real
money,
expenditure
or
of labor
volves
15-2-9)
(SDCL
predecessor to SDCL 15-2A-3
repair
replacement, adds
than mere
or
more
conclusion,
1985).
reaching
(repealed
its
permanent
property,
value of the
and is
to the
predicted
Den Hul
that South
the Van
court
in nature.” Id.
adopt
Dakota courts would
a common sense
question
a replacement
previ
County
whether
argue,
and PRCF
how-
ously existing utility equipment
ever,
constituted
that a
disputed
material issue of
fact
improvement
an
to real property within
ordinary
exists whether this work was an
meaning
of that state’s similar statutes
repair
replacement. They specifically
or
forth IV showing. response, In alternative, County and In the however, only submit- [¶21.] preempts argue that CERCLA PRCF of Work” document “Scope Peltier’s ted discovery imposes and repose statute of tanks were to be existing provided they which limitations under statute of separate contract. under removed See a cause of action. any may bring not introduce County and PRCF did Commonly known as “Su- § 9658. Equipment’s U.S.C. suggesting that Sioux facts by enacted Con- perfand,” CERCLA work, it involved installation though even liability imposes in 1980. CERCLA system, gress storage delivery and a new fuel release of for the persons responsible replacement or ordinary repair was a mere waste, hazardous and it applies Burlington, to eases a chemical storage tank brought that are under state law for prop- leaked, Burlington and Northern conduct- erty by damage caused environmental con- ed an emergency clean-up of the railroad taminants that are released into the envi- right-of-way. The railroad then sought re- 9658(a)(1). ronment. 42 In U.S.C. such imbursement from the owner of the stor- cases, that, provides CERCLA notwith- age tanks, brought and the owner a third- standing any contrary state “statute of party against claim the seller of the tanks. limitations,” the bringing time for an ac- brought The action was after the expira- tion run plaintiff does not start to until the tion of a fifteen-year Texas statute of re- reasonably knew or should have known pose, and the seller of the tanks damages that the were haz- caused summary moved for judgment upon based 9658(a)(1) §§ ardous substance. 42 U.S.C. that statute. (b)(4)(A).5 Applying
[¶
pres-
22.]
CERCLA the
[¶
The Fifth Circuit
24.]
conclud
case, County
ent
that the
ed that
preempts
CERCLA
statutes
date the statute of
began
limitations
to run
limitations,
repose.
but not statutes of
In
was when the fuel leak was discovered on
so,
doing
pointed
it
out the substantive
County’s
property, February
2003. The
difference between a statute of limitations
circuit court disagreed, relying on the lat-
repose:
and statute of
est federal court
holding
decisions
that the
A
extinguishes
statute of limitations
plain language of
only applies
CERCLA
right to prosecute an accrued cause of
limitations,
statutes of
because
stat-
period
action after a
of time.
It cuts off
repose
substantively
different
remedy....
A
statute of
lim-
limitations,
than a statute of
during
its the time
which a cause of
apply
does not
action can
usually
arise and
runs from
highest
[¶
The
23.]
federal court
an act of a
It
defendant.
abolishes the
consider this issue is the Fifth Circuit
cause of action after the passage of time
Court of Appeals.
Burlington
See
N. &
though
even
the cause of
may
action
Ry.
Co.,
Sanie Fe
Co. v. Poole Chemical
yet
accrued.
(5th Cir.2005).
415
given
§
acknowledging plain language of
9658 should be
“semantics,” and further
of
Co.,
failed to include stat-
effect.”);
had
Congress
that
v.
McDonald
Sun Oil
423
preemp-
within CERCLA’s
repose
utes of
(D.Or.2006) (conclud-
1114, 1127
F.Supp.2d
applied
Fifth Circuit
the
provision,
tive
the
ing:
agrees
analysis
“This
with the
court
statute, con-
the federal
plain language of
Burlington
of the
court that
there
ais
repose
of
are not
that statutes
cluding
substantive
between a
difference
statute of
preemptive
within CERCLA’s
included
repose,
limitations and a statute of
and
Burlington
ex-
The
court
language.
only
...
extends
stat-
plained,
limitations.”).
utes of
plain
the
of
language
reach of
[T]he
§
of
not extend
statutes
9658 does
authority, two
notwithstanding this
other
repose
Literal-
[the
statute].
like
Texas
courts have determined that CERCLA
only
that it
ly,
preempts
§
states
9658
preempts state statutes of
Those
applicable
the
state stat-
state law when
federal district court and state court of
com-
“provides
ute
a
limitations
were, however,
appeals cases
decided in
date which is earlier than
mencement
1994,well before the Fifth Circuit Court of
[federally required
commencement
peremp- Appeals
subsequent
no mention of
all
federal district
is]
date]
[there—
repose.”
or statutes of
tory statutes
courts held otherwise. The later decisions
defines “commencement
provision
recognized
that the earlier decisions
specified in a statute
as the “date
date”
Inc.,
Buggsi
like
v. Chevron U.S.A.
857
of the
beginning
as
limitations
(D.Or.1994),
F.Supp.
were
1427
decided
period.”
[The
limitations
applicable
prior
Burlington,
and did not consider
however,
repose,]
is not
Texas statute
difference between
statute
limitations;
it is
statute of
a statute
limitations. The
statute of
more
repose,
differences between
specifically
recent
decision
not-
McDonald
limitations and
statutes
omission,
“The
Buggsi’,s
stating:
Bur-
ed
substantive,
merely
repose are
se-
lington
acknowledged
court
courts
mantic.
distinguish
have sometimes failed to
stat-
Id. at from a statute of limitations
of this
analyzing
applicability
when
All recent federal district courts
CERCLA,
[.Burlington ]
cit-
section
Transp.
v. CSX
agree. See German
Nevertheless,
Buggsi
cases.
ed
and other
(S.D.Ala.2007)
F.Supp.2d
633
[Burlington]
noted that
these
court
in Burlington,
discussed
(concluding: “As
different.” 423
types
quite
of statutes are
does not
stat-
the text of
mention
County and PRCF’s
F.Supp.2d at 1127.
repose but instead discuss-
utes or rules of
Corp.
opinion,
other
Steel
Chatham
only
es
of limitations. Under the
statutes
(D.Fla.
Brown,
construction,
statutory
F.Supp.
principles of
Burns,
Peterson,
ex
SD
until after it was barred and even
rel. Peterson
even arise
person
diligent
though
injured
judicial remedy.
seeking a
*10
1994),was
prior Burlington
also decided
injury
When an
is inherently undiseover-
it, too,
failed to distinguish between
able, however, states often use the dis-
repose
statutes of
and statutes of limita-
covery
running
rule to toll the
of the
Furthermore,
tions.
the
debate
Chat-
period
limitations
until the
“dis-
ham Steel was limited to whether South
covers, or in exercising reasonable dili-
repose
preempt-
Carolina’s statute of
gence
discovered,
should have
facts
ed because it conflicted with CERCLA’s
injured.”
indicate he has been
In con-
liability provisions.
F.Supp.
at 1151.
trast,
injury
awareness of
is not a factor
circumstances,
Under the
we do not find
in determining
period
when the time
persua-
and PRCF’s authorities
statute of
starts to run.
a
Unlike
sive.
find
Fifth
Circuit and the
limitations,
statute of
“a statute of re-
more recent federal district court decisions
pose creates a
right
substantive
to be
more instructive.
liability
free from
after a legislatively
period.”
words,
determined
In other
notwithstanding the federal authority on
statute of
“right
establishes a
subject,
legislative history
sued,”
to be
“right
rather than a
to sue.”
requires
different
result.
Thus, with the expiration
period
of the
argument
This
was considered in Burling-
repose,
putative
cause of action
Burlington
ton.
acknowledged
appar-
evanesces;
life cannot
thereafter be
legislative
CERCLA,
ent
intent behind
but
Texas,
breathed back into it.
In
such
nevertheless
plain language
concluded that
“represent
statutes
response by
controlled over purported legislative in-
legislature
inadequacy
[Texas]
to the
tent. After
acknowledging
first
Con-
traditional statutes of limitations and are
gress’s apparent intent to extend statutes
specifically designed to protect [manu-
long-latent
limitations
for
diseases
...
from protracted
facturers]
and ex-
caused
the release of hazardous sub-
vulnerability
tended
to lawsuits.”
stances, the Fifth Circuit nevertheless con-
Id. at 363-64.
plain language
cluded that the
of the stat-
In
addition to this sub
prevailed:
ute
distinction,
stantive
deferring
plain
lan
legislative history
CERCLA’s
indicates
guage
purported legislative
over
purpose
§
Congress
intended
9658 to
predominant
and intent is a
theme
stat
preempt a state statute of limitations
utory interpretation in federal and state
deprives
a plaintiff who suffers a
Burlington
courts.
noted:
long-latency
disease caused
the re-
involving
cases
statutory construc-
lease of a hazardous substance of his
tion, a court begins with
plain
lan-
action,
cause of
preempt
but not to
guage of the statute. A court assumes
state statute of repose like [the Texas
statute],
legislative
purpose of a statute
“is
‘expressed by the ordinary meaning
(citations
Burlington,
417 claims were barred the statute rules of PRCF’s primary adhere to two [W]e is repose. The first rule statutory construction. in the stat- expressed language Affirmed. [¶ 30.] consideration. paramount ute is the that if the words second rule is
The GILBERTSON, Justice, Chief [¶ 31.] plain have mean- in the statute phrases KONENKAMP, and effect, declare simply we should ing and MEIERHENRY, Justices, concur. resort to statuto- meaning and not their ry construction. Justice, SABERS, dissents. [¶ 32.] ¶ State, 138, 15, 636 2001 SD Goetz v. SABERS, (dissenting Justice on Issue Therefore, intent “[t]he N.W.2d 2). from must be determined of the statute said, than rather legislature what 2 respectfully I dissent on Issue legislature thinks [C]ourt what 15-2A-3, SDCL preempts as CERCLA said, this determination have should Generally, remedial the statute of ordinary plain, confined to the must be liberally in statutes are construed favor leg language used meaning of remedy or in favor of those entitled to ex rel. Estate Hagemann islature.” Socony- the benefit of the statute. See Inc., 2001 SD Engg., v. Hagemann NJS Smith, 305 Vacuum Oil Co. U.S. M.B. v. 102, 5, (citing 843 632 N.W.2d (1939); 266, L.Ed. 265 59 S.Ct. (S.D. 94, 97 Konenkamp, 523 N.W.2d Statutes, generally, 73 see also Remedial 1994)). v. Raven In also Faircloth See (updated § Am.Jur.2d Statutes March dus., 2000 SD 2008). technical, should avoid the ordinarily “Intent is (providing: majority opinion ap- strict construction express lan by examining the ascertained of a liberal construction to plies, favor therefore defer guage of the statute. We justice and the intention of Con- promote possible.”); Delano to the text where gress. (S.D.1994) 606, 608 Petteys, 520 N.W.2d “im- was enacted to CERCLA enact (declaring: applying legislative “In responsible for liability persons pose[ ] ments, them as written. accept we must ” Supra hazardous waste.... the release of from intent is determined legislative Moreover, “the preempts CERCLA said, rather than from legislature what the for such ac- period limitations applicable or others think it should what we (as in the State statute specified tion said.”). case, language of plain In this law)” and limitations or under common only state law when preempts with a “fed- period the limitation replaces of limitations” applicable “state statute date.” erally required commencement date that a commencement provides 9658(a)(1). case, In this the stat- federally required com than the U.S.C. earlier on the action 42 U.S.C. is a limitation repose mencement date. See 9658(a)(1) (b)(4)(A). Congress with the federal replaced §§ and should be substantively different Congress failed to include If amended date. commencement preemptive within this statutes statutes “certain State CERCLA because controls. Accordingly, plain court,” text rule. day in see plaintiffs of their deprive 261, reprinted Rep HR No 99-962 Conf reasons, foregoing we For the [¶29.] 3276, 3354, then a in 1986 U.S.C.C.A.N. court’s conclusion affirm the circuit interpreted should be statute improve- Equipment’s work was period limitations applicable “the County’s and be property and ment to real *12 9658(a)(1). action.” See 42 U.S.C. [the] interpreted
If properly the statute was
liberally, Congress’ giving then intent of day in
“plaintiffs ... their court” would be
fulfilled. majority opinion’s strict in-
terpretation of CERCLA thwarts Con-
gressional intent. should use common preempts and hold that
sense majori-
the statute of Because the
ty opinion contrary reaches decision CERCLA, purpose I dissent.
STATE of Plaintiff South Appellee, SWAN, Appellant.
Isaac Defendant and
No. 24621.
Supreme Court of South Dakota. April
Considered on Briefs July
Decided