#29195-r-PJD

2020 S.D. 60

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

JEFFREY K. POWERS and

VICKY URBAN-REASONOVER, Petitioners and Appellants,

v.

TURNER COUNTY BOARD OF

ADJUSTMENT, Respondent,

and

STEVE SCHMEICHEL and

ETHAN SCHMEICHEL, Respondents and Appellees.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FIRST JUDICIAL CIRCUIT

TURNER COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE CHRIS GILES

THE HONORABLE DAVID KNOFF

Judges

* * * *

MITCHELL A. PETERSON

REECE M. ALMOND of

Davenport, Evans, Hurwitz

 & Smith, LLP

Sioux Falls, South Dakota Attorneys for petitioners

and appellants.

BRIAN J. DONAHOE

DANIEL B. WEINSTEIN of

Donahoe Law Firm, P.C.

Sioux Falls, South Dakota Attorneys for respondents

and appellees.

* * * *

CONSIDERED ON BRIEFS

MAY 26, 2020

OPINION FILED 11/04/20
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DEVANEY, Justice

[¶1.] After the Turner County Board of Adjustment approved an application 

for the construction and operation of a concentrated animal feeding operation, two 

landowners appealed the decision by petitioning the circuit court for a writ of 

certiorari under SDCL 11-2-61. On cross-motions for summary judgment, the 

circuit court dismissed the petitioners’ appeal, concluding that they failed to show 

they were persons aggrieved and, thus, lacked standing to appeal under SDCL 11-2-

61. We reverse and remand.

Factual and Procedural Background

[¶2.] In March 2018, Steve and Ethan Schmeichel applied to the Turner 

County Zoning Office for a conditional use permit to operate a large concentrated 

animal feeding operation (CAFO). The CAFO would include a 5,400-head sow 

facility with 2,000 swine over 55 pounds. On April 10, 2018, the Turner County 

Commission, sitting as the Turner County Board of Adjustment (Board), held a 

hearing on the application. The Board chairman, Eric Meyer, participated in the 

hearing but abstained from voting because of a financial interest. Applicant Steve 

Schmeichel is a Turner County Commissioner and a member of the Board. He 

recused himself as a participating Board member and instead participated in the 

hearing as an applicant. Turner County resident Vicky Urban-Reasonover and 

other residents appeared at the hearing to object to the CAFO. At the conclusion of 

the hearing, the Board voted unanimously to approve the Schmeichels’ application.

[¶3.] On September 18, 2018, Jeffery Powers and Urban-Reasonover (the 

Petitioners) petitioned the circuit court for a writ of certiorari under SDCL 11-2-61. 
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They alleged that they own land near the proposed CAFO and are aggrieved by the 

Board’s decision because the CAFO creates a serious risk of, among other things, 

pollution, increased odors and noise, and negative impact on their property values. 

They also alleged the Board’s decision was illegal, asserting that the Board failed to 

comply with notice publication requirements and that the application was not

approved with the minimum four affirmative votes required by the ordinance. They 

further alleged that participation in the hearing by two disqualified Board members 

caused actual bias or risk of actual bias in the voting members, and that the Board 

failed to regularly pursue its authority in approving the CAFO application. The 

Petitioners filed a motion for summary judgment on their writ, asserting that no 

material issues of fact were in dispute, and therefore, the court could determine as a 

matter of law that the Board’s decision was illegal.1

[¶4.] The Schmeichels, joined by Turner County, filed a cross-motion for 

summary judgment, asserting among other things, that the Petitioners lacked 

standing to appeal the Board’s decision under SDCL 11-2-61. According to the 

Schmeichels, the Petitioners failed to allege facts sufficient to show that they are 

persons aggrieved by a decision of the Board. The Schmeichels acknowledged that 

the CAFO could affect the Petitioners’ enjoyment of their property and that the 

effect on them could be greater than the effect on other Turner County residents. 

 

1. The Petitioners asserted that there is no dispute that the Board voted to 

approve the CAFO without the requisite Board composition. The Petitioners 

further claimed that the Board’s decision was illegal as a matter of law 

because a disqualified member (Meyer) participated in the hearing and the 

Board published notice of the April 2018 hearing in the Hurley newspaper 

when it should have published notice in the Parker newspaper.
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However, the Schmeichels asserted that the Petitioners failed to allege a unique or 

personal injury, separate and distinct from similar Turner County residents. In 

response, Urban-Reasonover submitted an affidavit stating that her residence and 

property is less than 3/4 of a mile from the proposed CAFO, and if built, the 

operation will cause her property to be substantially devalued because of noxious 

odors and noise.

[¶5.] The circuit court held a hearing on the issue of standing and thereafter 

issued a memorandum decision. Applying Cable v. Union County Board of County 

Commissioners, 2009 S.D. 59, 769 N.W.2d 817, the court found that the Petitioners 

failed to present sufficient evidence to establish standing. The court determined 

that “[t]here is simply nothing in the record to support [Affiant Urban-Reasonover’s] 

allegations that noxious odors and noise will invade her property . . . .” In the 

court’s view, it was “left to decide whether 3/4 of a mile is significant without any 

evidence with which to” determine whether the Petitioners are persons aggrieved. 

However, the court did not grant summary judgment to the Schmeichels and 

Turner County because the Petitioners had made a timely request for discovery 

under SDCL 15-6-56(f).2 The court therefore granted the Petitioners 45 days from 

the date of the June 13, 2019 decision to submit additional evidence to show 

standing.

 

2. Under SDCL 15-6-56(f): “Should it appear from the affidavits of a party 

opposing the motion that he cannot for reasons stated present by affidavit 

facts essential to justify his opposition, the court may refuse the application 

for judgment or may order a continuance to permit affidavits to be obtained 

or depositions to be taken or discovery to be had or may make such other

order as is just.”
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[¶6.] Instead of submitting additional evidence, the Petitioners filed a 

motion to reconsider and a motion to compel discovery. They asserted that the 

circuit court’s previous ruling was no longer valid in light of Abata v. Pennington 

County Board of Commissioners, 2019 S.D. 39, 931 N.W.2d 714.3 The circuit court 

disagreed that Abata changed the inquiry in this case because Abata did not 

address SDCL 11-2-61, and like the petitioners in Cable, the Petitioners here were 

required to show they are persons aggrieved. The circuit court denied the 

Petitioners’ request to compel discovery and gave the Petitioners until September 

23, 2019, to submit evidence on standing.

 

3. In Abata, a group of citizens instituted a declaratory judgment action 

challenging the validity of a county zoning ordinance. In considering whether 

the citizens lacked standing to challenge the ordinance, the Court did not 

apply the “person aggrieved” standing inquiry from Cable because “the 

statutory basis for [an appeal in Abata] is different than in Cable[.]” 2019 

S.D. 39, ¶ 11, 931 N.W.2d at 719. We noted that declaratory judgment 

actions are “remedial in nature and should be construed liberally,” and 

applied the “injury in fact” (Article III standing) analysis in light of the 

slightly different language in SDCL 21-24-3 which authorizes persons whose 

rights are “affected” by an ordinance to bring such an action. 2019 S.D. 39, 

¶¶ 11–12. We then referred to Croell Redi-Mix, Inc., v. Pennington County 

Board of Commissioners, a case involving whether citizens had standing to 

appeal a planning commission’s decision to the board of county 

commissioners under an ordinance containing language similar to that 

contained in the declaratory judgment statute. 2017 S.D. 87, 905 N.W.2d 

344. The county ordinance in Croell granted a right to appeal to “all who are 

affected by the Planning director’s administering of [the applicable 

ordinance].” Id. ¶ 14, 905 N.W.2d at 348. In Croell, the Court declined to 

apply the standing analysis from Cable because the “person aggrieved” 

language in SDCL 7-8-27 “is substantially narrower than” the “affected”

language in the Pennington County zoning ordinance that was at issue in the 

case, and the appeal at issue was an inter-agency appeal, rather than an 

appeal to a circuit court which would implicate judicial case-or-controversy 

standing requirements. Id.
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[¶7.] On September 20, 2019, the Petitioners submitted an expert report 

and affidavit from appraiser Steven Shaykett related to the CAFO’s effect on the 

value of Urban-Reasonover’s property. In his report, Shaykett opined that if the 

CAFO is constructed as proposed, the value of Urban-Reasonover’s property would 

be reduced by $48,000. The Petitioners also submitted an expert report and 

affidavit from Anton Jitnikovitch on an “Odour Impact Simulation.” In his report, 

Jitnikovitch opined that Urban-Reasonover’s property would experience complainttriggering odors from the proposed CAFO “72.4% of days.”

[¶8.] After the Petitioners submitted this evidence, the circuit court judge 

recused himself and another judge was assigned to the case. The Schmeichels, 

joined by Turner County, filed a supplemental brief on October 28, 2019, responding 

to the Petitioners’ evidence on standing. After a hearing on November 4, 2019, the 

reassigned judge granted the Schmeichels summary judgment, concluding that the 

Petitioners lacked standing because they failed to show that they have a unique 

injury compared to other Turner County residents. The court declined to rule on 

the Petitioners’ motion for summary judgment and dismissed their appeal.

[¶9.] The Petitioners now appeal to this Court, asserting that the circuit 

court erred in concluding they lacked standing to appeal under SDCL 11-2-61.

Standard of Review

[¶10.] Our standard of review from a decision granting summary judgment is 

well settled:

We must determine whether the moving party demonstrated the 

absence of any genuine issue of material fact and showed 

entitlement to judgment on the merits as a matter of law. The 

evidence must be viewed most favorably to the nonmoving party 
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and reasonable doubts should be resolved against the moving 

party. The nonmoving party, however, must present specific 

facts showing that a genuine, material issue for trial exists. Our 

task on appeal is to determine only whether a genuine issue of 

material fact exists and whether the law was correctly applied. 

If there exists any basis which supports the ruling of the trial 

court, affirmance of a summary judgment is proper.

Brandt v. Pennington Cnty., 2013 S.D. 22, ¶ 7, 827 N.W.2d 871, 874 (quoting 

Jacobson v. Leisinger, 2008 S.D. 19, ¶ 24, 746 N.W.2d 739, 745).

Analysis and Decision

[¶11.] The Petitioners argue that the circuit court erred in concluding as a 

matter of law that they did not present sufficient facts demonstrating a unique and 

personal injury compared to Turner County taxpayers in general.4 They further 

assert that the circuit court judge improperly weighed evidence from their experts 

and applied his professed personal knowledge about odor dispersion and CAFOs in 

rejecting the expert evidence.

[¶12.] The Schmeichels, joined by Turner County, contend the circuit court 

properly concluded that the Petitioners are not persons aggrieved under SDCL 11-2-

61 because the alleged harm—increased noise, dust, and odor, and reduced property 

 

4. The Petitioners also argue that the circuit court erred in concluding that they 

lacked standing because, according to the Petitioners, the Board violated 

their due process rights, and on that claim alone, they have established 

standing under SDCL 11-2-61. As support, they direct this Court to 

Armstrong v. Turner County Board of Adjustment, 2009 S.D. 81, 772 N.W.2d 

643. However, Armstrong was decided when a taxpayer could appeal under 

SDCL 11-2-61 without having to establish aggrieved status. See Lake 

Hendricks Imp. Ass’n v. Brookings Cnty. Planning and Zoning Comm’n, 2016 

S.D. 48, ¶ 22, 882 N.W.2d 307, 314. After Lake Hendricks, the Legislature 

amended SDCL 11-2-61 to require the aggrieved status in any appeal under

the statute. The Petitioners must therefore show they are persons aggrieved.
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value—would be suffered by all residents living near the proposed CAFO. To 

support their argument that the Petitioners’ injury is not personal or unique, the 

Schmeichels direct this Court to the “Right to Farm Covenant” running with the 

land for all Turner County residents in the A-1 Agricultural District. That covenant 

provides:

You are hereby notified that the property on which you are 

constructing a structure is in or near agricultural land, 

agricultural operations or agricultural processing facilities or 

operations. You may be subject to inconvenience or discomfort . 

. . . Discomforts and inconveniences may include, but are not 

limited to: noise, odors, fumes, dust, smoke, burning, vibrations, 

insects, rodents, and/or the operation of machinery (including 

aircraft) during any twenty-four hour period. If you live near an 

agricultural area, you should be prepared to accept such 

inconveniences or discomforts as a normal and necessary aspect 

of living in an area with a strong rural character and an active 

agricultural sector. You are also notified that there is the 

potential for agricultural or agricultural processing operations to 

expand.

The Schmeichels argue that this covenant precludes the Petitioners from 

establishing standing because the Petitioners’ property is outside the setbacks 

required by the county ordinance for the CAFO, and therefore, “the amount of odor, 

dust, noise or other alleged harm from the operation of the CAFO [was] considered 

to be reasonable for those existing residences and other landowners in the area.” 

The Schmeichels further assert that nothing in the Petitioners’ application, 

evidence, or comments submitted at the hearing indicated that their proposed 

CAFO would require additional protections.5

 

5. The Schmeichels ask this Court to declare that this appeal cannot lie when, 

in their view, the Petitioners in effect request that the Board increase the 

setbacks required under the applicable ordinances. The Schmeichels assert 

(continued . . .)
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[¶13.] “A litigant must have standing in order to bring a claim in court.” 

Lippold v. Meade Cnty. Bd. of Comm’rs, 2018 S.D. 7, ¶ 18, 906 N.W.2d 917, 922. 

Further, “[a]though standing is distinct from subject-matter jurisdiction, a circuit 

court may not exercise its subject-matter jurisdiction unless the parties have 

standing.” Id. “Subject matter jurisdiction is conferred solely by constitutional or 

statutory provisions.” Cable, 2009 S.D. 59, ¶ 20, 769 N.W.2d at 825 (citation 

omitted). The statute governing the Petitioners’ application authorizes a particular 

class of plaintiffs to bring suit under SDCL chapter 11-2: “Any person or persons, 

jointly or severally, or any taxpayer, or any officer, department, board, or bureau of 

the county, aggrieved by any decision of the board of adjustment may present to a 

court of record a petition duly verified, setting forth that the decision is illegal, in 

whole or in part, specifying the grounds of the illegality.” SDCL 11-2-61 (emphasis 

added).

[¶14.] The parties do not dispute that the Petitioners must set forth sufficient 

evidence to show that they are persons aggrieved by the Board’s decision in order to 

appeal under this statute. However, they disagree as to what type of evidence 

________________________

(. . . continued)

that the Turner County ordinance does not authorize an increase based on 

the characteristics of a particular operation. They cite Adolph v. Grant 

County Board of Adjustment for the proposition that “[b]ecause the board was 

not required to consider increasing the minimum setbacks, its decision not to 

do so was legal.” See 2017 S.D. 5, ¶ 20, 891 N.W.2d 377, 384 (emphasis 

added). There are multiple flaws in the Schmeichels’ argument. First, they 

do not direct this Court to any particular ordinance provision to support their 

claim. Second, the Turner County ordinance does in fact authorize the Board 

to impose additional conditions, including setbacks, to control such things as 

odor, air, and water pollution. In any event, unlike the claims raised in 

Adolph, we do not construe the Petitioners’ appeal here as an allegation that 

the Board failed to consider increasing the minimum setbacks.
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supports such a finding. The Schmeichels rely on Cable, 2009 S.D. 59, 769 N.W.2d 

817, and contend that “[c]omplaints of harm due to proximity to the project are not 

sufficient.” According to the Schmeichels, Cable requires that the Petitioners 

establish a unique injury as compared to all residents living near the proposed 

CAFO upon construction and operation. The Petitioners, on the other hand, argue 

that Cable is not controlling because the Court in that case interpreted SDCL 7-8-

27, which pertains to “any person aggrieved” by a board of county commissioners 

decision, whereas SDCL 11-2-61 allows “[a]ny person or persons, jointly or severally, 

. . . aggrieved by any decision of the board of adjustment” to appeal. (Emphasis 

added.) The Petitioners further claim that if the reasoning in Cable applies to 

SDCL 11-2-61, Cable does not require evidence of an “ultra-unique injury” as 

suggested by the Schmeichels, but rather an injury that differs from taxpayers in 

general.6

 

6. In support of their argument, the Petitioners note that in Huber v. Hanson 

County Planning Commission, this Court found that a claim that the 

construction and operation of a 2,400-pig nursery operation “will result in 

unmanageable manure and odor control on Hubers’ adjacent property” was 

“sufficient [under SDCL 11-2-61] to plead an injury unique to the Hubers.” 

2019 S.D. 64, ¶ 18, 936 N.W.2d 565, 571. The appeal in Huber pertained to a 

dismissal of a petition on a motion to dismiss because of the type of writ being 

sought. In reversing this dismissal, the Court addressed the four procedural 

requirements that must be met to confer jurisdiction to the circuit court, one 

of which is standing. We concluded that the Hubers had sufficiently pled 

“general allegations” necessary to support standing, but we declined to 

consider the merits of their factual claims related to standing. Id. We 

indicated that if standing is disputed on remand, the circuit court could 

determine the issue after a factual record was more fully developed. Id. ¶ 19. 

See Benson v. State, 2006 S.D. 8, ¶ 29, 710 N.W.2d 131, 143 (Zinter, J., 

concurring specially) (discussing the manner and degree of proof necessary to 

sustain the burden of showing standing at various stages of a proceeding) 

(continued . . .)
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[¶15.] In Cable, the Union County Board of Commissioners granted a 

rezoning permit to Hyperion, LLC for the construction of an oil refinery. 2009 S.D. 

59, ¶ 2, 769 N.W.2d at 821. Cable filed an appeal under SDCL 7-8-27, challenging 

the board’s decision. The county moved to dismiss the appeal, contending that 

Cable lacked standing because he alleged no personal or individual grievance and 

was not an owner of real property in Union County.7 Id. ¶ 4. Cable claimed he had 

an equitable interest in the property, even though he did not own it. He further 

contended that his alleged injury—“his right to live without pollution affecting his 

living quarters and usual quiet and peaceful rural lifestyle in Union County”—was 

sufficient. Id. ¶ 5, 769 N.W.2d at 821–22. Cable’s affidavit filed in support of his 

claim that he is a person aggrieved identified a number of potential injuries: air, 

water and ground pollution; heavy traffic; rowdy behavior by construction workers; 

________________________

(. . . continued)

(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 

2137, 119 L. Ed. 2d 351 (1992)).

7. Similarly, the petitioner, Save Union County LLC, did not own real property 

in Union County. Cable, 2009 S.D. 59, ¶ 4, 769 N.W.2d at 821. Several 

members of the LLC were property owners in Union County and submitted 

affidavits alleging they would be impacted by the refinery. The individual 

members also sought to amend the petition to be added as parties, but the 

circuit court denied the amendment. The court concluded that the proposed 

amendment did not relate back to the time of the appeal and was untimely 

under SDCL 7-8-29. Id. ¶ 11, 769 N.W.2d at 823. More pertinent to the case 

here is this Court’s determination in Cable that the LLC lacked

representational standing because the members who submitted affidavits did 

not allege “a harm or injury specific and personally directed at each of them

that is distinct from the injuries to be suffered by the balance of the Union 

County body politic.” Id. ¶ 48, 769 N.W.2d at 832.
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possible explosions and fires; diminution in property value; and water drainage 

issues. Id. ¶ 6, 769 N.W.2d at 822.

[¶16.] Ultimately, the circuit court found Cable’s evidence insufficient to 

show that his alleged personal injuries were different than those that might be 

suffered by the general public. Id. ¶ 14. The court noted that Cable offered no 

expert testimony related to how the proposed refinery would affect his asthma or 

how the refinery could contaminate the aquifer under his property. Finally, the 

court “concluded that Cable’s claims as to noise, smell, light, and traffic from the 

proposed refinery were speculative, and that Cable failed to provide any specific 

evidence that the traffic on the road where he lived would be heavier than in other 

parts of the county.” Id.

[¶17.] On appeal, we examined what is meant by the language “any person 

aggrieved” in SDCL 7-8-27. Id. ¶ 26, 769 N.W.2d at 827. We noted the phrase

“‘person aggrieved’ required a showing that the person suffered ‘a personal and 

pecuniary loss not suffered by taxpayers in general, falling upon him in his 

individual capacity, and not merely in his capacity as a taxpayer and member of the 

body politic of the county[.]’” Id. (quoting Barnum v. Ewing, 53 S.D. 47, 220 N.W. 

135, 137–38 (1928)).8 We further explained that persons aggrieved are “only such 

 

8. Barnum, a case involving a county commission’s redistricting of the 

commissioner districts, represents a classic example of a harm suffered by all 

or many of the taxpayers. Barnum challenged the board’s decision, alleging 

it failed to comply with governing statutes when redistricting. However, 

Barnum did “not claim to stand in any other or different position from any 

other resident taxpayer or elector of the county . . . .” 53 S.D. 47, 220 N.W. at 

137. Rather, his interest was “an interest common to all, and exists solely 

because of the fact that they are taxpayers, and, while it may differ in 

(continued . . .)
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persons as might be able affirmatively to show that they were aggrieved in the 

sense that by the decision of the board they suffered the denial of some claim of 

right, either of person or property, or the imposition of some burden or obligation in 

their personal or individual capacity . . . .” Id. (emphasis added) (quoting Cuka v. 

School Bd. of Bon Homme School Dist. No. 4-2 of Bon Homme Cnty., 264 N.W.2d 

924, 926 (S.D. 1978)). “When the threatened injury ‘will affect not only the other 

freeholders besides the plaintiffs, but all the inhabitants of that local district, 

whether they are freeholders or not[,] the injury is not personal but rather an injury 

to all citizens and members of the community.’” Id. (quoting Wood v. Bangs, 46 

N.W. 586, 588, 1 Dakota 179 (Dakota Terr. 1875)).

[¶18.] From our review of Cable and this Court’s cases going back to the early 

Dakota Territorial era, we conclude the language in Cable relating what is meant 

by any person aggrieved under SDCL 7-8-27 likewise applies to SDCL 11-2-61, even 

though the language of the two statutes is not identical. But this does not mean 

that in order to appeal under SDCL 11-2-61, one must show an injury that is 

“‘unique when compared with injuries suffered by others’ living within the same 

proximity of the proposed site.” See Schmeichels’ Brief p. 22–23 (emphasis added). 

On the contrary, in Cable, the Court held that a petitioner is “required to plead a 

unique and personal injury as opposed to a general taxpayer injury in order to 

proceed under SDCL 7-8-27.” 2009 S.D. 59, ¶ 28, 769 N.W.2d at 828 (emphasis 

________________________

(. . . continued)

amount, it does not differ in nature or origin among any of the taxpayers.” 

Id.
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added).9 In finding the Cable petitioners’ showing to be insufficient, we noted that 

“any injury they may suffer in terms of diminution of the value of their real 

property or damage to their quiet rural lifestyle will be shared by all taxpayers and 

electors, but to a greater extent by those in closer proximity to the proposed 

refinery.” 2009 S.D. 59, ¶ 32, 769 N.W.2d at 829 (emphasis added).

[¶19.] The latter portion of this statement from Cable has been quoted to 

suggest a stringent standard wherein concerns shared by others in close proximity 

to the proposed site are never unique. See Abata, 2019 S.D. 39, ¶ 10, 931 N.W.2d at 

719. To the extent that Abata’s characterization of Cable seems to support such a 

suggestion, we now take this opportunity to clarify our holding in Cable.10 The 

Court’s conclusion that the petitioners in Cable lacked standing must be examined 

in light of Cable’s specific claims and the evidence presented to the circuit court. 

This evidence consisted not only of testimony from the residents residing in close 

proximity to the proposed refinery, but also included an affidavit from a resident 

 

9. A review of cases from other jurisdictions and secondary sources related to 

land-use decisions by boards reveals no clear definition of person aggrieved. 

As one commentator noted, “Some courts have accordingly ruled that 

proximity establishes a prima facie case or a presumption of standing.” 4 

Am. Law. Zoning § 42:17 (5th ed.). The commentator further noted that 

other courts have required that a plaintiff show a particularized injury in 

addition to proximity. Id. Yet other courts have found aggrievement when a 

land-use decision will decrease the value of the plaintiff’s land. Id.

10. The Schmeichels’ reliance on Cable and Abata to support a heightened 

requirement for standing is misplaced. In Abata, our limited discussion of 

Cable was dicta because Abata did not involve the interpretation of a statute 

containing the term “persons aggrieved.” 2019 S.D. 39, ¶¶ 10–11, 931 

N.W.2d at 719 (citing Cable, 2009 S.D. 59, ¶ 32, 769 N.W.2d at 829). More 

importantly, Abata did not relate the crux of the determination in Cable,

which focused on the fact that the injuries alleged would be shared by all the 

taxpayers and electors of the county.
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who lived some twenty-five miles from the proposed site attesting that he “would 

also suffer the ill effects of the refinery, but to a lesser degree.” Cable, 2009 S.D. 59, 

¶ 34, 769 N.W.2d at 829. As such, this Court concluded that “Cable in effect 

introduced evidence . . . that all Union County taxpayers would suffer as a 

consequence of the proposed refinery but to varying degrees based on proximity, 

which served to negate Cable’s claim that the injury would be unique and personal 

to him.” Id. (emphasis added).

[¶20.] Here, in contrast, the Petitioners did not assert in their petition that 

all or many other Turner County residents would be aggrieved in a similar manner. 

Rather, Urban-Reasonover attested that “[o]ther taxpayers in Turner County who 

live or own property several miles from the proposed site will not experience any 

noxious odors or noise from” the CAFO. (Emphasis added.) Moreover, in resisting 

summary judgment, the Petitioners submitted an affidavit from Urban-Reasonover 

and expert reports from appraiser Shaykett and Jitnikovitch to support that they 

“might be able affirmatively to show” that Urban-Reasonover was aggrieved 

because the Board’s decision imposed a burden on Urban-Reasonover in her 

personal capacity as distinguished from any grievance she might suffer in her 

capacity as a member of the body politic. Urban-Reasonover attested that her 

property is 3/4 of a mile from where the proposed CAFO would be built. She 

claimed that she has “considered operating a bed and breakfast from [her] property 

in the future for retirement income.” She alleged that if the CAFO is constructed as 

proposed, “noxious odors and noise will unreasonably invade [her] property and 

annoy the comfort and repose of [her] property.” She further alleged that the 
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construction and operation of the proposed CAFO would “cause [her] property to be 

substantially devalued in ways other taxpayers of Turner County will not be 

harmed.” Appraiser Shaykett’s report related his expert opinion that UrbanReasonover’s property, with the proposed CAFO constructed and operating, will 

reduce in value by $48,000. Jitnikovitch’s report related his expert opinion that if 

the CAFO is constructed and operated as planned, Urban-Reasonover’s property 

will experience complaint-triggering odors “72.4% of days.”11

[¶21.] The Schmeichels contend that the circuit court, in rejecting the 

Petitioners’ expert evidence as unreliable and speculative, properly exercised its 

role as a “gate keeper” under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 

U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). However, the Schmeichels did 

not file a formal Daubert motion to challenge either expert’s opinions on summary 

judgment, which would have given the Petitioners the opportunity to respond and 

further develop the factual record upon which a Daubert ruling could be based. 

Moreover, the record reveals that the Petitioners’ expert evidence was rejected 

because it did not comport with the circuit judge’s personal knowledge and 

understanding of CAFOs derived, in part, from the judge’s past experience as a 

state’s attorney and county commissioner. It is also apparent from the court’s 

comments that the court was weighing the Petitioners’ proffered evidence against 

the court’s personal knowledge of how CAFOs are operated.

 

11. The Schmeichels did not offer competing expert opinions, nor did they 

request additional time to depose the Petitioners’ experts.
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[¶22.] It is well settled that a court is not to weigh the evidence at the 

summary judgment stage. Hamilton v. Sommers, 2014 S.D. 76, ¶ 42, 855 N.W.2d 

855, 868. Rather, evidence must be viewed most favorably to the nonmoving party 

when determining “if the pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any, show that there is no genuine 

issue as to any material fact and that the moving party is entitled to a judgment as 

a matter of law.” SDCL 15-6-56(c). Notably, parties opposing summary judgment 

need only “substantiate [their] allegations with sufficient probative evidence that 

would permit a finding in [their] favor on more than mere speculation, conjecture, 

or fantasy.” Peters v. Great W. Bank, Inc., 2015 S.D. 4, ¶ 13, 859 N.W.2d 618, 624 

(quoting Estate of Elliott v. A & B Welding Supply Co., 1999 S.D. 57, ¶ 16, 594 

N.W.2d 707, 710).

[¶23.] From our review of the evidence viewed in a light most favorable to the 

Petitioners, we conclude that the Petitioners have set forth sufficient specific facts 

to show “a personal and pecuniary loss not suffered by taxpayers in general, falling 

upon [a petitioner] in [an] individual capacity, and not merely in [the] capacity as a 

taxpayer and member of the body politic of the county[.]” See Cable, 2009 S.D. 59, ¶ 

26, 769 N.W.2d at 827 (quoting Barnum, 53 S.D. 47, 220 N.W. at 137–38). First, 

unlike the plaintiff in Cable, the Petitioners did not rest upon mere allegations and 

legal argument. See, e.g., id. ¶¶ 34, 39. They substantiated their allegations with 

expert opinions rather than relying on mere speculation, conjecture, or fantasy. 

Second, although the Schmeichels argue that the Right to Farm Covenant 

establishes that the Petitioners’ alleged inconveniences and discomforts are not 
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personal or unique, namely because they are similarly suffered by other residents of 

the county, the Petitioners offered evidence in support of their allegation that the 

proposed CAFO will injure them beyond the inconveniences and discomforts related 

in the Covenant.

[¶24.] For these reasons, the circuit court erred when it granted summary 

judgment dismissing the Petitioners’ appeal for an inadequate showing of standing. 

We therefore reverse and remand for further proceedings.

[¶25.] GILBERTSON, Chief Justice, and KERN, JENSEN, and SALTER, 

Justices, concur.