MITCHELL — About eight miles southeast of Mitchell lies a gargantuan open pit: a quartzite quarry owned by Dakota Constructors, Inc.
The sandy floor of the mine, which houses a small lake recently formed from spring runoff, is surrounded by bluffs of exposed rock around one hundred feet high, a smattering of grays, browns and beiges that will, at some point, be blasted into the riprap and gravel that forms the backbone of many heavy construction projects in the area.
Though it's business as usual for the workers crushing and hauling aggregate, the pit is at the center of a battle between Dakota Constructors and the Hanson County Board of Adjustment, a somewhat complex disagreement over conditional use permits that made it all the way to the South Dakota Supreme Court, where attorneys for each side made their case during oral argument on April 27.
The county board appears motivated by worries that drivers on the road adjacent to the mine could find themselves falling more than a hundred feet to a rocky bottom; Warren Barse, the owner of Dakota Constructors, believes the precautions already taken are enough to protect any reasonable driver, and that the further investments sought by the county would be harmful to his business.
The question in front of the Court is whether the county board was within its powers to require a conditional use permit in the first place.
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The facts of the case are simple. In 2021, the quarry changed ownership from Fischer Sand & Gravel Co. to Dakota Constructors.
The land had been used as a source of construction aggregate for more than 30 years, meaning it was in use prior to the adoption of zoning ordinances by Hanson County in April 2000. Due to a sort of grandfather clause in South Dakota law, any owner of the quarry would only be mandated to acquire a conditional use permit if mining activities ceased for more than one year.
According to Barse, his purchase of the quarry occurred under the assumption that he would not be required to get a conditional use permit, either. In 2019, he points out, Fischer Sand & Gravel had filed with the South Dakota Department of Agriculture and Natural Resources a notice to continue operating until 2031.
The Hanson County Board of Adjustment, however, disagreed. In February 2022, the body handed down a conditional use permit which established several safeguards, many of which were related to protecting drivers on the county road several feet away from the pit, including constructing a six-foot-high berm and installing a secure perimeter fence.
Josh Kayser, the chair of the zoning board, declined to comment due to the ongoing legal proceedings.
The board’s line of reasoning, according to a filing to the Court from attorneys Jack Hieb and Zachary Peterson, was that the use of the quarry envisioned by Dakota Constructors — to “mine or extract” from the pit — is different from the way it was used by Fischer, which for more than a decade had not mined new material from the quarry, and had instead simply taken aggregate from a stockpile of already mined material.
Therefore, the argument continues, the use intended by Dakota Constructors had ceased for more than one year, and a conditional use permit was required. The circuit court had ruled in favor of Hanson County’s ability to interpret the ordinance in that manner.
“Allowing Hanson County's Board of Adjustment deference in interpreting this ordinance, I think it's appropriate in this case,” Hieb said during the oral argument, noting that the blasting of rocks, which apparently sent material to neighboring properties and an adjacent public roadway, creates externalities that do not exist when already loose aggregate is simply hauled away.
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Paul Linde, the attorney for Dakota Constructors, disagreed, arguing that similar cases in other states had shown courts unwilling to allow county interpretations to split definitional hairs in this manner.
“Even though there was no actual quarrying activity or digging, [Fischer] continued to haul from the stockpiles, which showed that there was no intent to discontinue that use or cease operation,” Linde said.
Hieb argued those other cases had little bearing due to differences in factual context and standards of review.
Were the South Dakota Supreme Court to uphold the lower court’s ruling in favor of the county, Dakota Constructors would have to get to work on the final, and most expensive, part of the conditional use permit: building a three-by-one back slope adjacent to the public road, offering unfortunate drivers a softer landing.
Though Barse says he could manage the $500,000 cost to install, the project would also cover major deposits of quartzite and potentially prevent the mine from taking advantage of some 300 feet of rock that has yet to be uncovered.
He added that a driver would likely have to be going more than double the 35 mph speed limit for there to be a possibility of breaking through the improvements that have already been made.
“We did everything they asked us to do. It's just we don't want to put the three-by-one,” Barse said. “It would be a heck of an impact because it would have us covering up a lot of resources there in the pit.”
Jason Harward is a Report for America corps reporter who writes about state politics in South Dakota. Contact him at 605-301-0496 or jharward@forumcomm.com.
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