Opponents pledge fight to high court

• Dairy permit

A building permit for a Hanson County dairy is taped to a post near 421st Street and 250th Avenue northeast of Fulton. (Chris Huber/Republic)

Talk about it

ALEXANDRIA — An adversary of a proposed 7,000-head dairy in Hanson County said he is prepared to take the appeal of the dairy’s water permit to the South Dakota Supreme Court if necessary.

“The fight is a long way from being over,” said Hanson County resident Robert Bender.

Bender and state Rep. Stace Nelson, R-Fulton, with their attorney R. Shawn Tornow, are appealing the South Dakota Water Management Board’s decision granting a water permit to a proposed dairy in Hanson County. Their request to place a stay on the dairy’s water permit while their appeal is considered was denied Friday by Circuit Court Judge Sean O’Brien.

“We’re disappointed with the judge’s decision, but we’re going ahead to the next level,” Bender said.

Bender said he is willing to bring the appeal to the state Supreme Court if necessary.

The attorney for the dairy opponents said his clients still have reason to be encouraged.

“Given the decision, my clients are still working toward following through on the appeal,” Tornow said. “We think there are areas within the opinion that can be better explored through the appeal process up through circuit court and beyond, if necessary.”

A hearing was held Nov. 3 at the Hanson County Courthouse at which both sides argued over the request to place a stay on the dairy’s water permit, which would allow the removal of 720,000 gallons of water from the region’s aquifer each day.

Eric Kerkvliet, lawyer for the dairy’s developer, Michael Crinion, declined to comment and said it is his policy not to comment on ongoing litigation. Crinion has also consistently declined to comment on the situation.

In the written decision regarding the Nov. 3 hearing, Judge O’Brien noted a problem with the notice of a July 13 hearing provided to Bender and Crinion by the state Department of Environment and Natural Resources.

The notice should have stated the hearing would be adversarial and both parties had the right to be represented by a lawyer, O’Brien noted, but it only said the hearing “may be” adversarial. O’Brien acknowledged, however, that the notice was sufficient for the matter being decided at the Nov. 3 hearing.

Tornow said “future reviews in court will hopefully find that the notice needed to be strictly complied with.”

The court ruled in favor of the proposed dairy on all points considered in the opposition’s request to place a stay on the developer’s water permit.

Bender said he felt the public was on his side even after the court’s recent decision.

“We have a lot of support, and it’s growing,” Bender said. “If we didn’t have the support, we probably wouldn’t be going ahead with all this.”

Bender said support isn’t only coming from the people of Hanson County, but he also has received calls of support from people in Davison and McCook counties.

O’Brien ruled the public interest weighed in favor of granting the dairy its water permit in his written decision Friday.

With information provided by the Water Management Board, O’Brien said the proposed 7,000-cow and $36 million dairy facility would have an economic impact of $95 million in South Dakota, with $35 million of that impact in Hanson County.

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