#29334-a-MES

2022 S.D. 45

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

AMBER KAYE CHRISTENSON,

ALLEN ROBISH, KRISTI MOGEN,

and PATRICK LYNCH, Appellants,

v.

CROWNED RIDGE WIND, LLC, and

SOUTH DAKOTA PUBLIC UTILITIES

COMMISSION, Appellees.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE THIRD JUDICIAL CIRCUIT

CODINGTON COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE CARMEN MEANS

Judge

* * * *

R. SHAWN TORNOW

Sioux Falls, South Dakota Attorney for appellants.

MILES F. SCHUMACHER of

Lynn Jackson Shultz & Lebrun P.C.

Sioux Falls, South Dakota

BRIAN J. MURPHY of

NextEra Energy Resources, LLC

Juno Beach, Florida Attorneys for appellee Crowned 

Ridge Wind, LLC.

* * * *

CONSIDERED ON BRIEFS

MARCH 23, 2021

OPINION FILED 08/03/22
AMANDA M. REISS

KRISTEN N. EDWARDS of

South Dakota Public Utilities Commission Attorneys for appellee South 

Dakota Public Utilities 

Commission.
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SALTER, Justice

[¶1.] Crowned Ridge Wind, LLC (Crowned Ridge) applied to the South 

Dakota Public Utilities Commission (the PUC) for a permit to construct a wind 

energy farm in northeast South Dakota. Several individuals impacted by the 

potential wind farm intervened and objected to Crowned Ridge’s application. After 

conducting an evidentiary hearing, the PUC issued a written decision approving the 

application. The intervenors appealed to the circuit court, which affirmed the 

PUC’s decision. Two of the intervenors now appeal to this Court. We affirm.

Facts and Procedural History

[¶2.] Crowned Ridge is a wind energy company that sought to construct a 

wind farm comprised of up to 130 wind turbines capable of producing 300 

megawatts of electricity in Codington and Grant Counties (the Project). Given its 

size, the Project is classified as a “wind energy facility” and was required to obtain a 

permit from the PUC before beginning construction. See SDCL 49-41B-2(13) 

(defining “[w]ind energy facility” as a facility, which, among other things, is 

“capable of generation of one hundred megawatts or more of electricity”); SDCL 49-

41B-4 (stating siting permit requirement).

[¶3.] Amber Christenson and Allen Robish, among other area residents, 

sought and obtained party status as intervenors (the Intervenors) in order to oppose 

Crowned Ridge’s application.1 Their opposition triggered the PUC’s contested 

1. In addition to the applicant, parties to the PUC application process include 

PUC Staff and “[a]ny person residing in the area where the facility is 

proposed to be sited, or any directly interested person” who applies for and 

(continued . . .)
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hearing procedures, including the requirement that Crowned Ridge file written 

testimony in support of its application in advance of the hearing. See ARSD 

20:10:22:39 (stating in part, “Upon the filing of an application pursuant to SDCL 

49-41B-11, an applicant shall also file all data, exhibits, and related testimony 

which the applicant intends to submit in support of its application.”).

[¶4.] Crowned Ridge filed, or “pre-filed” as it is commonly known, the 

testimony of a number of witnesses, including Jay Haley who conducted sound and 

shadow flicker2 studies in connection with the Project. Haley’s testimony and 

attached studies were supplemented during the pendency of the administrative 

case.

[¶5.] Using this pre-filed testimony procedure, Crowned Ridge also filed the 

written testimony of Kimberly Wells, Ph.D., who provided her findings and expert 

opinions regarding the Project’s impact on the environment, to include its effect on 

natural resources as well as cultural implications. However, as the dates for the 

evidentiary hearing drew closer, Crowned Ridge learned that Dr. Wells would be 

unable to attend and testify in person. As a result, Crowned Ridge indicated it 

would call Sarah Sappington, who is a colleague of Dr. Wells, to testify about the 

environmental impact of the Project.

________________________

(. . . continued)

obtains “party status.” SDCL 49-41B-17. Christenson is a resident of 

Codington County; Robish resides in Grant County.

2. Shadow flicker is the effect of the sun shining through the rotating blades of 

a wind turbine, casting a moving shadow. See Ehlebracht v. Crowned Ridge 

Wind II, LLC, 2022 S.D. 19, ¶ 3, 972 N.W.2d 477, 481.
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[¶6.] Sappington had previously received a bachelor’s degree in 

anthropology with an emphasis in archaeology and a master’s degree in the same 

disciplines. At the time of the hearing, she had been employed by an environmental 

consulting firm for sixteen years, working on a variety of energy development 

projects throughout the Midwest.

[¶7.] Sappington worked with Dr. Wells on the environmental planning for 

the Project and had personal knowledge of the findings and opinions expressed in 

Dr. Wells’s initial pre-filed testimony. In fact, Sappington assisted in drafting the 

testimony. To provide notice of the transition from Dr. Wells to Sappington, 

Crowned Ridge pre-filed Sappington’s testimony adopting Dr. Wells’s earlier 

testimony.

[¶8.] At the PUC’s July 2019 evidentiary hearing, Crowned Ridge called 

Haley as a witness, but before he began his direct examination, the Intervenors 

objected to his testimony. They argued that Haley had misrepresented himself as a 

professional engineer and used the corresponding “P.E.” designation after his name 

on correspondence and documents filed in connection with his sound and shadow 

flicker studies.

[¶9.] Haley explained that he holds a bachelor’s degree in mechanical 

engineering and was a licensed professional engineer in North Dakota and 

Minnesota for nearly 30 years. However, he had in recent years voluntarily allowed 

his licensure to lapse because of changes to continuing education requirements and 

his plan to retire in the near future. Although he understood that he was no longer 

able to stamp engineering drawings, he believed he could still use the professional 
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engineer designation. He learned that his latter belief was incorrect shortly before 

the evidentiary hearing.

[¶10.] Nevertheless, Haley explained that it was not necessary to be a 

professional engineer to conduct sound and shadow flicker studies. He stated that 

he was a partner in a wind energy consulting firm and had performed many such 

studies over the years and trained hundreds of others from various disciplines to 

use a particular software program to plan the construction of wind farms. Haley 

also testified that he was a member of a committee working to develop international 

standards for evaluating and locating proposed wind energy farms.

[¶11.] Crowned Ridge responded to the Intervenors’ argument by claiming 

Haley’s inaccurate use of the “P.E.” designation was an innocent mistake that did 

not impact his ability to provide expert testimony. Staff for the PUC offered a 

similar view, indicating that the Intervenors’ objection may implicate issues of 

weight or credibility, but not admissibility.

[¶12.] The PUC’s hearing examiner agreed and overruled the Intervenors’ 

objection. Counsel for the Intervenors sought a ruling from the commissioners, all 

three of whom agreed that the objection should be overruled.

[¶13.] The Intervenors also objected to Sappington’s testimony immediately 

after Crowned Ridge called her as a witness, claiming that Sappington’s testimony 

would constitute inadmissible hearsay. Under the Intervenors’ theory, Sappington

was simply “adopting” Dr. Wells’s out-of-court pre-filed testimony as a sort of proxy 

witness. However, Crowned Ridge argued that Sappington had personal knowledge 

of the environmental impact assessment in the same way Dr. Wells did because 
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Sappington worked with Dr. Wells and others in a collaborative effort to complete 

the assessment for the Project. Staff for the PUC did not support the Intervenors’ 

objection, and the hearing examiner overruled it. Counsel for the Intervenors again 

sought a ruling from the members of the PUC who all agreed that the objection 

should be overruled.

[¶14.] The PUC issued its written final decision and order approving 

Crowned Ridge’s application and granting it a permit to begin construction on the 

Project. The final decision was subject to 45 conditions, which ranged from 

restrictions regulating sound emissions from the wind turbines to limits on shadow 

flicker and other conditions designed to avoid or minimize the Project’s impact on 

natural resources and areas holding historic and cultural significance.

[¶15.] The Intervenors appealed the PUC’s final order to the circuit court. As 

part of their appeal, the Intervenors filed a statement of issues, identifying 31 

individual issues, including 36 separate sub-issues. The Intervenors did not 

expressly challenge the PUC’s decision to overrule their objection to Haley’s 

testimony. And though they did include a specific issue relating to Sappington’s 

testimony, the Intervenors alleged a due process violation, not a hearsay claim.

[¶16.] In their brief to the circuit court, the Intervenors addressed only three 

issues: (1) “Whether the PUC abused its discretion when it approved the 

Application using incomplete and inaccurate information related to sound 

studies[;]” (2) “Whether the PUC abused its discretion when it approved the 

Application without sound and shadow flicker studies at all occupied [residences] 

within the siting area[;]” and (3) “Whether the PUC abused its discretion when it 
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approved the Application without a complete avian use study.” The Intervenors 

referenced Haley’s use of the “P.E.” designation as a means of undermining his 

expert opinion, but they did not directly challenge the PUC’s decision to overrule 

their objection. The Intervenors also mentioned Sappington in their brief, but only 

to point out that her testimony supported their view that Crowned Ridge’s 

application did not include an avian study for birds in all affected areas but, in the 

Intervenors’ view, should have.

[¶17.] The circuit court affirmed the PUC’s final decision. The court noted 

the Intervenors’ criticism of Haley’s testimony but concluded the issue relating to its 

admissibility was not part of the appeal because it had not been listed among the 

Intervenors’ stated issues. The court also referenced Sappington’s testimony. It 

clarified that, though Sappington acknowledged the absence of an avian study for 

an area known as Cattle Ridge, the PUC specifically contemplated that fact and had 

relied upon additional testimony from Sappington, which convinced the PUC that 

Crowned Ridge had nevertheless used proper methods to assess the Project’s 

“potential effects to wildlife for the entire Project Area.”

[¶18.] In the current appeal, the Intervenors now directly challenge the 

PUC’s decision to overrule their objections to Haley’s and Sappington’s testimony. 

Though the Intervenors do not explicitly challenge the sufficiency or reliability of 

the expert testimony, they do claim that inaccurate or incomplete aspects of it 

represent the prejudicial impact of allowing Haley and Sappington to testify—i.e., 

the Intervenors were prejudiced when the PUC credited testimony it should have 

excluded.
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[¶19.] We restate the issues presented in this appeal as follows:

1. Whether the PUC abused its discretion when it overruled 

the Intervenors’ objection to Jay Haley’s testimony on the 

basis that he had incorrectly identified himself as a 

professional engineer.

2. Whether the PUC abused its discretion when it overruled 

the Intervenors’ hearsay objection to the testimony of 

Sarah Sappington.3

Standard of Review

[¶20.] “Any party to a permit issuance proceeding aggrieved by the final 

decision of the Public Utilities Commission on an application for a permit, may 

obtain judicial review of that decision by filing a notice of appeal in circuit court.” 

SDCL 49-41B-30. We have recognized that “SDCL 1-26-36 delineates the standard 

for a circuit court’s review of an administrative agency’s decision, and ‘[t]he same 

rules apply on appeal to this Court.’” Anderson v. S.D. Ret. Sys., 2019 S.D. 11, ¶ 10, 

924 N.W.2d 146, 148–49 (quoting Lagler v. Menard, Inc., 2018 S.D. 53, ¶ 22, 915 

N.W.2d 707, 715). The text of SDCL 1-26-36 provides in part:

The court shall give great weight to the findings made and 

inferences drawn by an agency on questions of fact. The court 

may affirm the decision of the agency or remand the case for 

further proceedings. The court may reverse or modify the 

decision if substantial rights of the appellant have been 

prejudiced because the administrative findings, inferences, 

conclusions, or decisions are:

3. The Intervenors also identified a third issue in this appeal, arguing that the 

circuit court lacked jurisdiction to consider the administrative appeal because 

its memorandum opinion listed the PUC’s docket number as “EL 18-003” 

instead of using the correct number, “EL 19-003.” We granted the joint 

motion of Crowned Ridge and the PUC Staff for a limited remand, and the 

circuit court subsequently corrected what appears to have been a clerical 

error, resolving, without the need for our decision, any question of the circuit 

court’s subject matter jurisdiction.
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(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in light of the entire evidence in the 

record; or

(6) Arbitrary or capricious or characterized by abuse of 

discretion or clearly unwarranted exercise of discretion.

[¶21.] Consistent with this statutory directive, we apply the following 

standards of review to agency decisions:

Questions of law are reviewed de novo. Dakota Trailer Mfg., 

Inc. v. United Fire & Cas. Co., 2015 S.D. 55, ¶ 11, 866 N.W.2d 

545, 548. Matters of reviewable discretion are reviewed for 

abuse. SDCL 1-26-36(6). The agency’s factual findings are 

reviewed under the clearly erroneous standard. SDCL 1-26-

36(5). The agency’s decision may be affirmed or remanded but 

cannot be reversed or modified absent a showing of prejudice. 

SDCL 1-26-36.

Anderson, 2019 S.D. 11, ¶ 10, 924 N.W.2d at 148–49 (quoting Lagler, 2018 S.D. 53, 

¶ 22, 915 N.W.2d at 715).

[¶22.] As is relevant to our discussion here, we generally define an abuse of 

discretion as a decision that “is a fundamental error of judgment, a choice outside 

the range of permissible choices, a decision, which, [on full consideration,] is 

arbitrary or unreasonable[.]” In re Application of Benton, 2005 S.D. 2, ¶ 22, 691 

N.W.2d 598, 605 (citation omitted); see also SDCL 1-26-36(6) (stating that an agency 

decision may be reversed or modified if the decision is “[a]rbitrary or capricious or 

characterized by abuse of discretion or clearly unwarranted exercise of discretion”).

Analysis and Decision

[¶23.] As an applicant seeking a siting permit from the PUC for construction 

of its Project, Crowned Ridge had the burden of establishing by a preponderance of 

the evidence that:
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(1) The proposed facility will comply with all applicable laws 

and rules;

(2) The facility will not pose a threat of serious injury to the 

environment nor to the social and economic condition of 

inhabitants or expected inhabitants in the siting area. An 

applicant for an electric transmission line, a solar energy 

facility, or a wind energy facility that holds a conditional 

use permit from the applicable local units of government 

is determined not to threaten the social and economic 

condition of inhabitants or expected inhabitants in the 

siting area;

(3) The facility will not substantially impair the health, 

safety or welfare of the inhabitants; and

(4) The facility will not unduly interfere with the orderly 

development of the region with due consideration having 

been given the views of governing bodies of affected local 

units of government. An applicant for an electric 

transmission line, a solar energy facility, or a wind energy 

facility that holds a conditional use permit from the 

applicable local units of government is in compliance with 

this subdivision.

SDCL 49-41B-22.

[¶24.] Where the application meets with opposition, the PUC will conduct a 

contested case hearing to determine, in part, whether the requesting party has 

satisfied its burden under SDCL 49-41B-22. See SDCL 49-41B-17.2. These 

hearings are conducted using the procedures set out in South Dakota’s 

Administrative Procedure Act (APA) contained in SDCL chapter 1-26. Id. Among 

the provisions contained in the APA is SDCL 1-26-19, which addresses the rules of 

evidence used in contested administrative cases and provides in part:

Irrelevant, incompetent, immaterial, or unduly repetitious 

evidence shall be excluded. The rules of evidence as applied 

under statutory provisions and in the trial of civil cases in the 

circuit courts of this state, or as may be provided in statutes 

relating to the specific agency, shall be followed. When 

necessary to ascertain facts not reasonably susceptible of proof 
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under those rules, evidence not otherwise admissible thereunder 

may be admitted except where precluded by statute if it is of a 

type commonly relied upon by reasonably prudent persons in the 

conduct of their affairs.

[¶25.] We have interpreted this statute to mean that the rules of evidence 

generally apply in administrative hearings. Dail v. South Dakota Real Estate 

Comm’n, 257 N.W.2d 709, 712 (S.D. 1977). However, even where the rules would 

otherwise bar certain evidence, it may nevertheless be admissible under SDCL 1-

26-19 if the evidence is “probative of a fact not reasonably susceptible of proof under 

normal rules” and is “of a type commonly relied upon by reasonably prudent persons 

in the conduct of their affairs.” Id.4

[¶26.] Drawing upon this guidance and other rules of appellate procedure 

noted below, we conclude that neither of the Intervenors’ evidentiary claims are 

sustainable and address each of them in turn.

Jay Haley’s Testimony

[¶27.] Before considering the merits of the Intervenors’ argument regarding 

Haley’s testimony, we must first determine if it is properly before us. Among the 

multitude of issues the Intervenors listed in connection with their circuit court 

appeal, none directly challenged the PUC’s decision to allow Haley’s testimony, 

though two of the issue statements contained general references to the PUC’s 

consideration of “false and misleading evidence and testimony in entering its final 

4. We have recognized that SDCL 1-26-19 contains a third condition to the 

admission of relevant information notwithstanding the rules of evidence. For 

otherwise inadmissible written evidence, the proponent must also 

demonstrate that the “interests of the parties are not substantially 

prejudiced” by its admission. DuBray v. Dep’t of Soc. Servs., 2004 S.D. 130, ¶ 

12, 690 N.W.2d 657, 662.
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Order and Decision . . . .”5 Citing SDCL 1-26-31.4, the circuit court determined that 

the Intervenors’ failure to identify the issue relating to Haley’s testimony among 

their many issue statements precluded review.

[¶28.] The provisions of SDCL 1-26-31.46 require the party appealing an 

administrative order to file a statement of issues within ten days after filing the 

notice of appeal. This statement of issues does not, itself, have jurisdictional 

significance. See Lagler, 2018 S.D. 53, ¶¶ 40–43, 915 N.W.2d at 718–20. The notice 

of appeal is the source of the circuit court’s appellate jurisdiction—not the 

statement of issues. Id. ¶ 41, 915 N.W.2d at 719. However, an Intervenor’s 

omission of an issue in the statement of issues means the party has failed to 

preserve it. Id. ¶ 42, 915 N.W.2d at 719. An unpreserved issue is thereafter 

deemed waived and will generally not be reviewed. Id.

5. Issue statement 3 stated: “Whether the PUC denied Intervenors [sic] and 

Appellants [sic] constitutional rights to due process rights by considering 

incomplete and misleading information in arriving at its Final Decision and 

Order Granting Permit to Construct Facility.”

Issue statement 22 similarly provided: “Whether the PUC violated 

Intervenors [sic] due process rights and acted arbitrarily and capriciously by 

considering false and misleading evidence and testimony in entering the 

Final Order and Decision Granting Permit to Construct Facility.”

Issue statement 7 appeared to challenge the weight the PUC accorded to 

sound and shadow flicker evidence, but not the decision to admit Haley’s 

testimony: “Whether the PUC acted arbitrarily and capriciously when it 

relied on unreliable applicant witness testimony regarding the substance of 

the application and the construction of the proposed facility related to shadow 

flicker and infrasound on property owned by Intervenors and others within 

Codington and Grant counties.”

6. It appears SDCL 1-26-31.4 originated as a Supreme Court Rule, but the 

Legislature made stylistic changes to the rule during its 2019 session. See

2019 S.D. Sess. Laws ch. 4, § 1.
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[¶29.] We agree with the circuit court that the Intervenors did not preserve 

their argument that Haley should not have been permitted to testify because he had 

referred to himself as a professional engineer. None of the issues included in the 

Intervenors’ statement of issues raised a specific challenge to the admissibility of 

Haley’s testimony. Perhaps most revealing is the fact that the Intervenors also did 

not include a challenge to the admission of Haley’s testimony in their brief to the 

circuit court. Though the Intervenors’ circuit court brief did mention that Haley 

erroneously referred to himself as a professional engineer, it did so only in the 

context of suggesting he lacked credibility and that Crowned Ridge had overstated 

his competence.

[¶30.] Further, the Intervenors’ issue statements alleging the PUC violated 

their due process rights by considering “false and misleading evidence and 

testimony” are unavailing for the additional reason that the Intervenors never 

made a due process argument when they objected to Haley’s testimony at the 

evidentiary hearing. Rather, they suggested his testimony and opinions should be 

excluded purely because Haley claimed he was a professional engineer at a time 

when he had let his license lapse. But this sanction-style argument was not 

couched in terms of due process.

[¶31.] However, even if the issue had been preserved in a specific issue 

statement, we believe the PUC acted within its discretion to allow Haley’s 

testimony. The facts and circumstances associated with Haley’s mistaken belief 

that he could continue to refer to himself as a professional engineer, though not able 

to stamp drawings, were laid bare in detail before the PUC, whose members were 
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unpersuaded by the Intervenors’ objection. The PUC’s ultimate decision to allow 

the testimony finds support in the rules of evidence.

[¶32.] Rule 702 of the South Dakota Rules of Evidence allows witnesses to 

provide expert opinions if they are qualified “by knowledge, skill, experience, 

training, or education[.]” SDCL 19-19-702. Haley holds an undergraduate degree 

in mechanical engineering, is a member of a committee formulating international 

standards for designing wind farms, has substantial experience conducting sound 

and shadow flicker studies, and has taught over 200 people how to use a software 

program to design wind farms. The Intervenors do not seriously challenge Haley as 

an expert.7 Nor have they challenged the admissibility of his opinions under the 

standard set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 

S. Ct. 2786, 125 L. Ed. 2d 469 (1993). See State v. Yuel, 2013 S.D. 84, ¶ 7, 840 

N.W.2d 680, 683 (quoting State v. Loftus, 1997 S.D. 131, ¶ 21, 573 N.W.2d 167, 173) 

(“The Daubert standard requires the trial court to ensure that an expert’s testimony 

both ‘rests on a reliable foundation and is relevant to the task at hand.’”).

[¶33.] Indeed, the Intervenors’ theory for excluding Haley’s testimony did not 

implicate the soundness of his methodology or its relevance to Crowned Ridge’s 

application. Instead, it was described before the PUC by the Intervenors’ counsel in 

7. The Intervenors do offer a more technical argument, claiming that Haley 

could not represent that he was a professional engineer without running 

afoul of SDCL chapter 36-18A, which regulates, among other technical 

professions, the practice of engineering. However, we fail to see how this 

claim impacts the admissibility of Haley’s testimony in this PUC proceeding 

for the reasons we have expressed.
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terms of a proposed sanction for Haley’s use of the “P.E.” designation after he had 

purposefully allowed his licensure to lapse:

The witness cannot make such a significant representation to 

this Commission and expect us just to give it a pass. I’m going 

to move that all of the proposed testimony of this witness and 

the exhibits of this witness and the supplemental reports and 

principal reports of this witness . . . be stricken. And I’m going 

to move that the admission of his testimony be denied because 

he’s misrepresented his status to this Commission, the public, 

and to my clients as the Intervenors.

[¶34.] Although counsel for the Intervenors further claimed that Haley’s act 

of “perpetrating a falsehood” had “an effect on the competency of the evidence that 

he would present[,]” counsel did not explain how. In fact, during his brief crossexamination, counsel for the Intervenors did not challenge Haley’s methods or 

conclusions.

[¶35.] The PUC staff stated its view that Haley’s use of the “P.E.” designation 

did not disqualify him as an expert who possesses sufficient “training, education 

and experience” and suggested that the PUC members could consider and weigh the 

credentialing issue in connection with the entirety of Haley’s testimony. The 

hearing examiner agreed and overruled the Intervenors’ objection. Counsel for the 

Intervenors sought a ruling from the three commissioners, each of whom voted to 

overrule the objection to Haley’s testimony.

[¶36.] The Intervenors’ additional claim that the PUC gave Haley “a pass” by 

allowing him to testify is not supportable. Merely allowing Haley to testify did not 

mean that the PUC would accept his explanation as to why he had, until recently, 

continued to use the “P.E.” designation. Nor did the admission of the testimony 

compel the PUC to reflexively accept all of Haley’s opinions. The record indicates 
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that Haley was questioned at some length by the PUC chair, and by the 

Intervenors’ counsel, before the PUC decided to overrule the Intervenors’ objection. 

In addition, the commissioners each examined Haley and asked substantive 

questions to test the strength of his opinions and their bearing upon Crowned 

Ridge’s application. Under the circumstances, we see no abuse of discretion.

Sarah Sappington’s Testimony

[¶37.] As an initial matter, the Intervenors’ objections to Sappington’s 

testimony presents its own waiver question that potentially precludes our review of 

the issue. Though the Intervenors referenced Sappington’s testimony in their 

statement of issues to the circuit court, they did not submit an argument 

challenging the admission of the testimony.

[¶38.] Although we review administrative appeals as the circuit court did, our 

decisions maintain a principal tenet of appellate procedure that generally prohibits 

parties from raising issues that were not first presented to the circuit court. See

Sioux Falls Shopping News, Inc. v. Dep’t of Revenue and Regul., 2008 S.D. 34, ¶ 29, 

749 N.W.2d 522, 528 (declining to consider an issue not raised in the circuit court 

following an administrative appeal); Romey v. Landers, 392 N.W.2d 415, 420 (S.D. 

1986) (holding a party’s failure to raise an issue in an administrative appeal to the 

circuit court precluded review by the Supreme Court).8 Applying these holdings 

8. Although the context unmistakably involves administrative appeals in each 

case, these decisions do not mark a distinction between the role of a circuit 

court as a reviewing court and its more traditional role as a trial court 

exercising original jurisdiction. In Sioux Falls Shopping News, for example, 

we cite two criminal cases and state that the “rule exists to permit a trial 

court an opportunity to correct claimed error, prior to appeal.” 2008 S.D. 34, 

(continued . . .)
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here, we believe that the Intervenors cannot argue for the first time on appeal to 

this Court that the PUC abused its discretion by admitting Sappington’s testimony.

[¶39.] However, even if we were to consider the merits of the Intervenors’ 

argument, we fail to see how Sappington’s testimony constitutes hearsay. Our 

common definition of hearsay is “an out-of-court statement used ‘to prove the truth 

of the matter asserted in the statement[.]’” State v. Wills, 2018 S.D. 21, ¶ 12, 908 

N.W.2d 757, 762 (quoting SDCL 19-19-801(c)). Here, Sappington did not repeat Dr. 

Wells’s out-of-court statements—she appeared as a witness and offered her own 

independent testimony and was subject to cross-examination. The fact that it was 

similar or the same as Dr. Wells’s pre-filed testimony may well reflect the 

collaborative way their group worked, as Sappington stated, but it does not make 

the testimony inadmissible hearsay.

[¶40.] The hearing examiner reached a similar conclusion when she overruled 

the hearsay objection, and the commissioners did as well with Commissioner Nelson 

explaining:

It is not impossible for two people to have the same opinions. 

And what I am understanding is that she has come here and she 

is saying, I have the same opinion as Ms. Wells and I am willing 

to defend that. And if that is what she is coming here for, and 

she’s going to swear under oath that that’s what she’s doing, I 

find that to be acceptable.

________________________

(. . . continued)

¶ 29, 749 N.W.2d at 528. But we need not resolve whether a circuit court’s 

distinct trial court and reviewing court roles impact the rule requiring a 

party to preserve arguments or risk waiver, given our alternative merits 

determination that the admission of Sappington’s testimony did not 

transgress the rules of evidence in any event.
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[¶41.] During her testimony, Sappington explained her direct involvement 

with Dr. Wells and others in conducting the environmental studies relating to the 

Project. Sappington stated she is a masters-level anthropologist with an emphasis 

in archaeology. She has worked for a nationwide environmental consulting firm for 

almost two decades. She routinely conducts environmental permitting, regulatory 

compliance, archeological investigations, and directs cultural and natural resource 

management. Sappington explained that she had assisted in preparing Dr. Wells’s 

pre-filed testimony and described the efforts of her team to ensure compliance with 

state and federal requirements regulating cultural and natural resources.9 Her 

group conducted field studies and desktop studies to determine the environmental 

and cultural impact of the proposed Crowned Ridge Project in an effort to avoid or 

minimize any adverse effects.

[¶42.] At the heart of the Intervenors’ argument is their view that Dr. Wells 

was more qualified to render the cultural and environmental impact opinions. Dr. 

Wells, they explain, holds a Ph.D. in Fisheries and Wildlife Sciences and is a 

Certified Wildlife Biologist and Certified Wetland Delineator, and much of the 

assessment of the impact associated with the Project deals with its effect on plants 

and animals. However, the Intervenors did not challenge Sappington’s competency 

9. As explained by the parties, pre-filed testimony aids them in their 

preparation by sharing their evidence prior to the evidentiary hearing, 

enhancing their effort to prepare and conduct discovery. Simply pre-filing 

testimony does not mean the evidence has been admitted. Compare ARSD 

20:10:01:22.06 (providing that “[w]hen ordered by the commission[,]” 

testimony shall be filed in written form) with ARSD 20:10:01:24.02 

(“Evidence shall be received in the order determined by the commission or 

presiding officer at the hearing.”).
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to testify regarding her own opinions under the Daubert standard, just that her 

testimony constituted hearsay, which, as we have determined, it did not.

[¶43.] The PUC’s practice of allowing one witness to “adopt” the pre-filed 

testimony of another is not as worrisome as the Intervenors suggest, at least not 

here. Though Sappington may have adopted Dr. Wells’s testimony, she did so 

because it aligned with her own first-hand knowledge and expert opinions, not as a 

designed end-run around the hearsay rules. The PUC’s decision to overrule the 

Intervenors’ hearsay objection was, therefore, not an abuse of discretion.10

Conclusion

[¶44.] For different reasons, the Intervenors have failed to preserve either of 

the evidentiary issues they present on appeal. However, even if that were not the 

case, the PUC acted within its discretion when it denied the Intervenors’ challenges 

to Haley’s and Sappington’s testimony. We affirm.

[¶45.] KERN, DEVANEY, and MYREN, Justices, and KRULL, Circuit Court 

Judge, concur.

[¶46.] KRULL, Circuit Court Judge, sitting for JENSEN, Chief Justice, who 

deemed himself disqualified and did not participate.

10. The Intervenors have paired their hearsay argument with an allegation that 

the admission of Sappington’s testimony also violated their due process 

rights. Crowned Ridge argues that the Intervenors did not preserve a due 

process claim before the PUC, and the contours of the claim are not 

separately developed in the Intervenors’ briefs to this Court. Given our 

ultimate disposition of the hearsay issue here, it is unnecessary to consider 

the due process claim further. See Reid v. Engen, 765 F.2d 1457, 1461 (9th 

Cir. 1985) (“[A] petitioner cannot obtain review of procedural errors in the 

administrative process that were not raised before the agency merely by 

alleging that every such error violates due process.”).