Ehlebracht v. Crowned Ridge Wind II, LLC and S.D. Pub. Util. Comm'n

#29610-a-MES
2022 S.D. 19

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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IN THE MATTER OF THE ADMINISTRATIVE
APPEAL OF GARRY EHLEBRACHT,
STEVEN GREBER, MARY GREBER,
RICHARD RALL, AMY RALL, AND
LARETTA KRANZ, Appellants,

v.

CROWNED RIDGE WIND II, LLC, and
SOUTH DAKOTA PUBLIC UTILITIES
COMMISSION, Appellees.

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APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
DEUEL COUNTY, SOUTH DAKOTA

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THE HONORABLE DAWN M. ELSHERE
Judge

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A.J. SWANSON
Canton, South Dakota Attorney for appellants.

DANA VAN BEEK PALMER
MILES F. SCHUMACHER of
Lynn, Jackson, Shultz & Lebrun P.C.
Sioux Falls, South Dakota

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ARGUED
OCTOBER 5, 2021
OPINION FILED 03/23/22
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BRIAN J. MURPHY of
NextEra Energy Resources, LLC
Juno Beach, Florida Attorneys for appellees
Crowned Ridge Wind II, LLC.

AMANDA R. REISS
KRISTEN N. EDWARDS
Special Assistant Attorneys General
Pierre, South Dakota Attorneys for appellees South
Dakota Public Utilities
Commission.
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SALTER, Justice

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

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

scale wind energy farm in northeast South Dakota. Several individuals 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. Six 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 132 wind turbines capable of producing 300.6 megawatts of

electricity in Codington, Grant, and Deuel Counties (the Project). Under the

provisions of SDCL 49-41B-2(13), Crowned Ridge’s Project was statutorily defined

as a “wind energy facility” because its size and design contemplated generating “one

hundred megawatts or more of electricity.” The Project also satisfied the broader

statutory definition of a “facility,” which includes a wide variety of energy facilities.

SDCL 49-41B-2(7). Consequently, Crowned Ridge could not begin construction of

the Project without obtaining a permit from the PUC. SDCL 49-41B-4. 1

[¶3.] Crowned Ridge submitted its application for a permit on July 9, 2019.

The six individuals who are the appellants in this appeal (the Intervenors) timely

1. Crowned Ridge was also required to secure the approval of the respective
county zoning authorities before beginning construction on the Project. See
Ehlebracht v. Deuel Cnty. Bd. of Adjustment, 2022 S.D. 18, 972 N.W.2d 464.

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sought and obtained party status to oppose the issuance of a permit. 2 Each of the

Intervenors are residents of Deuel County living near the Project. Their opposition

to the permit was primarily based on the wind turbines’ production of ambient noise

and a phenomenon known as shadow flicker, which refers to momentary disruptions

of natural sunlight caused by the rotation of a wind turbine’s blades.

[¶4.] Crowned Ridge did not propose to construct turbines on land owned by

the Intervenors and did not enter into lease or easement agreements with them, as

it had done with the other area landowners on whose property the Project was

directly sited. Members of this latter group are known as participating landowners,

while those in the former category, including the Intervenors, are described as non-

participating landowners.

[¶5.] Where, as here, an application meets with opposition, the PUC

conducts a contested case hearing using the procedures set out in South Dakota’s

Administrative Procedure Act contained in SDCL chapter 1-26. See SDCL 49-41B-

17.2. For Crowned Ridge’s application, the PUC conducted a hearing on February

4–6, 2020, to consider evidence and argument concerning the potential impact of the

Project on the environment and surrounding communities.

[¶6.] The evidentiary hearing produced extensive testimony from seventeen

witnesses. Many of the witnesses had previously submitted “pre-filed” direct

2. In addition to the applicant, parties to the permit application process also
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 asks to intervene
and obtains “party status.” SDCL 49-41B-17. The PUC ultimately granted
party status as intervenors to nine individuals. Three of those individuals
are not parties to this appeal.

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testimony and exhibits to the PUC, detailing their views about the Project. See

ARSD 20:10:22:39 (stating in part, “[u]pon 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.”).

[¶7.] For instance, Crowned Ridge submitted pre-filed direct testimony from

Jay Haley, a wind energy consultant who was engaged by Crowned Ridge to conduct

studies on the levels of noise and shadow flicker the Project would produce. At the

evidentiary hearing itself, Haley testified that, based on the “conservative

assumptions” of the sound study, the noise levels produced by the Project would fall

within the applicable county guidelines of forty-five decibels measured at non-

participating residences. Haley further testified that, based on the light study he

conducted, the shadow flicker produced by the Project would fall within the county-

imposed limits of no more than thirty hours of affected light per calendar year. 3

[¶8.] Crowned Ridge also submitted pre-filed direct testimony from

Christopher Ollson, PhD. Dr. Ollson was engaged by Crowned Ridge to study the

potential health implications associated with sound and shadow flicker. At the

evidentiary hearing, Dr. Ollson testified that the proposed limits of forty-five

decibels of sound at non-participating residences and no more than thirty hours of

shadow flicker would pose “no potential health or welfare risk to the county

residents.”

3. Zoning ordinances in both Grant and Deuel Counties included limitations on
sound generation of forty-five decibels at non-participating residences and a
shadow flicker limit of no more than thirty hours per year. The zoning
ordinance for Codington County included a sound limit of fifty decibels at all
residences but did not regulate shadow flicker.

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[¶9.] Darren Kearney, a utility analyst employed by the PUC staff, testified

about the process by which the PUC has historically regulated shadow flicker

limits. During cross-examination, counsel for the Intervenors questioned Kearney

about a lower shadow flicker level (fifteen hours per year) previously imposed as a

condition for a different wind energy project, known as Prevailing Wind Park. 4

Kearney explained that the fifteen-hour-per-year condition was not a

recommendation from the PUC staff, but was instead adopted by the commissioners

after an evidentiary hearing. Kearney further testified that, in working with the

permit applicants, the PUC staff commonly deferred to county regulations setting

the maximum amount of shadow flicker and incorporated those limits into the

permit conditions. He stated the “there are no [PUC] regulations. It’s a case-by-

case basis.”

[¶10.] The PUC staff also submitted pre-filed direct testimony from acoustical

engineer David Hessler who was engaged to review the noise study conducted by

Jay Haley. During cross-examination at the evidentiary hearing, Hessler testified

that the Project was “aggressively devised” by Crowned Ridge “in the sense of

they’re trying to put a lot of turbines into the project area.” Hessler stated that

Crowned Ridge had accommodated his requests to move certain turbines to

alternate locations in an attempt to mitigate sound emissions. Nevertheless,

Crowned Ridge was unable to achieve projected noise levels below forty decibels,

which Hessler described as the ideal noise limit. In his view, “annoyance and

4. In re Prevailing Wind Park, LLC, No. EL18-026, 2018 WL 6433657 (South
Dakota Pub. Utils. Comm’n Nov. 28, 2018).

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complaints from property owners and residents around the wind farm [are] more

likely” at noise levels exceeding forty decibels. Despite this conclusion, Hessler

testified that he believed the forty-five-decibel limit proposed by Crowned Ridge was

“a reasonable and fair noise limit.”

[¶11.] Hessler explained that he was also engaged by the PUC staff for the

Prevailing Wind Park application and discussed the variance between the forty-five-

decibel limit sought by Crowned Ridge and a forty-decibel condition imposed on

Prevailing Wind Park. As part of his assessment of the Prevailing Wind Park

project, Hessler recommended a forty-decibel noise limit at non-participating

residences because Prevailing Wind Park was able to achieve the “very, very rare”

forty-decibel mark by being “very accommodating” in adjusting turbine sites.

[¶12.] Later, in their post-hearing brief to the PUC, the Intervenors claimed

that the effect of the turbines’ sound and shadow flicker on their nearby property

constituted a burden on land under principles of state easement law, and Crowned

Ridge was therefore required to purchase easements or enter into lease agreements

before constructing turbines near their property. The Intervenors also alleged that

the PUC failed to properly exercise its rulemaking authority because it had not

adopted standards for the maximum levels of sound and shadow flicker. On this

latter point, the Intervenors highlighted the difference between the noise and

shadow limits sought by Crowned Ridge and those imposed by the PUC on the

Prevailing Wind Park project.

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[¶13.] The PUC voted unanimously to approve Crowned Ridge’s permit. In

its final decision and order, 5 the PUC issued findings of fact and conclusions of law.

See SDCL 1-26-24 (“The . . . decision shall contain a statement of the reasons

therefor and findings of fact on each issue and conclusions of law necessary to the

proposed decision . . . .”). As they relate to this appeal, the PUC found that

Crowned Ridge “has all land rights needed to construct and operate the Project[,]”

“that the Project will not adversely impact property values[,]” that Crowned Ridge

“has appropriately minimized the sound level produced from the Project” and has

“appropriately minimized the shadow and flicker for the Project[.]” The PUC

ultimately concluded that Crowned Ridge “satisfied [its] burden of proving all of the

requirements imposed by SDCL 49-41B-22 for issuance of the permit to construct by

the preponderance of the evidence.” 6

5. In re Crowned Ridge Wind II, LLC, No. EL19-027, 2020 WL 1877721 (South
Dakota Pub. Utils. Comm’n Apr. 6, 2020).

6. The text of SDCL 49-41B-22 provides:

The applicant has the burden of proof to establish by a
preponderance of the evidence that:

(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;

(continued . . .)
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[¶14.] The PUC’s order contained forty-nine permit conditions. Condition

twenty-six stated that the Project “shall not generate a sound pressure level . . . of

more than 45 dBA[7] as measured within 25 feet of any non-participating residence

unless the owner of the residence has signed a waiver[.]” Condition thirty-five

similarly stated that “[s]hadow flicker at residences shall not exceed 30 hours per

year unless the owner of the residence has signed a waiver.” The permit also

required Crowned Ridge to satisfy certain conditions on an ongoing basis during the

Project’s construction, operation, and decommissioning phases.

[¶15.] The Intervenors filed a notice of appeal in circuit court seeking judicial

review of the PUC’s decision to issue the permit. See SDCL 49-41B-30 (“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.”). In their written

argument to the circuit court, the Intervenors realleged their claims that the PUC

________________________
(. . . continued)
(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.

7. The term dBA refers to “A-weighted decibels.” It “is a unit for measuring
sound levels, approximately equal to the smallest difference in loudness
detectable by the human ear.” Atkinson v. City of Pierre, 2005 S.D. 114, ¶ 42
n.13, 706 N.W.2d 791, 802 n.13 (Sabers, J., dissenting).

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was statutorily required to promulgate rules establishing sound and shadow flicker

standards for all permit applications and that the PUC’s issuance of the permit

subjected their property to a “de facto easement.” The Intervenors also raised two

additional claims.

[¶16.] First, they argued that the PUC’s exercise of its permit authority

allowed Crowned Ridge to emit noise and produce shadow flicker on their property

without their consent, thereby resulting in an uncompensated taking under the

state and federal constitutions. Second, the Intervenors suggested that the PUC’s

approval of the application had effectively foreclosed a future nuisance remedy they

might otherwise seek against Crowned Ridge, which they alleged also constituted a

taking.

[¶17.] The circuit court affirmed the issuance of the permit. The court

determined that the PUC was not required by statute to promulgate standards for

sound and shadow flicker, but that the PUC was bound by the limits imposed by

local county ordinances in conditioning permit approval. The court also determined

that, as an administrative body, the PUC possessed no authority to create

easements, and, in any event, the court was limited in the context of an

administrative appeal to determining whether the PUC’s findings were clearly

erroneous without regard to ancillary claims regarding property rights. Finally, the

court rejected the easement, taking, and nuisance claims, concluding the

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Intervenors failed to demonstrate a taking under South Dakota law, and that the

nuisance claim “was not ripe.” 8

[¶18.] The Intervenors now appeal to this Court, raising five issues we have

restated as follows:

1. Whether the PUC is required by statute to promulgate
rules establishing the maximum levels of noise and
shadow flicker allowed for all wind energy facilities.
2. Whether the PUC’s issuance of the permit violated the
equal protection clauses of the South Dakota Constitution
and the United States Constitution.
3. Whether the PUC’s issuance of the permit created a “de
facto easement” in favor of Crowned Ridge.
4. Whether the PUC’s issuance of the permit constitutes a
per se taking.
5. Whether the PUC’s issuance of the permit would foreclose
a future nuisance claim, thereby resulting in a
compensable taking.

Standard of Review

[¶19.] The text of SDCL 1-26-36 provides the bases upon which an

administrative agency’s decision may be reversed or modified, and provides in

relevant 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

8. The Intervenors also made a passing reference in their brief to the equal
protection clauses of the state and federal constitutions, claiming the
variance between the permit conditions imposed on Crowned Ridge and those
approved for Prevailing Wind Park violated those provisions. In a footnote to
its memorandum opinion, the circuit court declined to address the claim,
concluding it was “without merit.”

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prejudiced because the administrative findings, inferences,
conclusions, or decisions are:

(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.

[¶20.] We have held 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. South Dakota 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). Stated precisely:

Questions of law are reviewed de novo. Matters of reviewable
discretion are reviewed for abuse. The agency’s factual findings
are reviewed under the clearly erroneous standard. The
agency’s decision may be affirmed or remanded but cannot be
reversed or modified absent a showing of prejudice.

Id. ¶ 10, 924 N.W.2d at 149 (cleaned up).

Analysis and Decision

The PUC’s Rulemaking Authority

[¶21.] The Legislature has found that “energy development in South Dakota

. . . significantly affects the welfare of the population” and, therefore, “it is necessary

to ensure that the location, construction, and operation of facilities will produce

minimal adverse effects on the environment and upon the citizens of this state by

providing that a facility may not be constructed or operated in this state without

first obtaining a permit from the commission.” SDCL 49-41B-1 (emphasis added).

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[¶22.] The Legislature has also delegated to the PUC the authority to

promulgate rules regarding the permitting and construction of wind energy

facilities. The text of SDCL 49-41B-35 provides:

To implement the provisions of this chapter regarding facilities,
the commission shall promulgate rules pursuant to chapter 1-26.
Rules may be adopted by the commission:

(1) To establish the information requirements and procedures
that every utility must follow when filing plans with the
commission regarding its proposed and existing facilities;

(2) To establish procedures for utilities to follow when filing
an application for a permit to construct a facility, and the
information required to be included in the application;
and

(3) To require bonds, guarantees, insurance, or other
requirements to provide funding for the decommissioning
and removal of a solar or wind energy facility.

[¶23.] Though the provisions of SDCL 49-41B-35 unquestionably require the

PUC to promulgate its rules using the procedures set forth by the Legislature in

chapter 1-26, the statute does not obligate the PUC to promulgate a particular rule

or regulatory standard. The text states only that the PUC’s rules “may be adopted”

to establish requirements and procedures regarding a wind energy facility’s

planning, application, and decommissioning processes. 9 Id. (emphasis added); see

In re Groseth Int’l, Inc., 442 N.W.2d 229, 231 (S.D. 1989) (“Ordinarily, the word

‘may’ in a statute is given a permissive or discretionary meaning. It is not

obligatory or mandatory as is the word ‘shall.’”). Read as a whole, SDCL 49-41B-35

simply operates as enabling legislation authorizing the PUC to undertake

9. Pursuant to this delegation, the PUC has, in fact, adopted rules regulating
the construction of wind energy facilities in South Dakota. See generally
ARSD 20:10:22 (“Energy Facility Siting Rules”).

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rulemaking within the enumerated subject areas. See Boever v. South Dakota Bd.

of Acct., 1997 S.D. 34, ¶ 15, 561 N.W.2d 309, 313 (holding that the Legislature must

“provide[ ] a sufficient guide, standard or intelligible principle to the agency to

direct the exercise of the delegated authority[.]”).

[¶24.] The Intervenors allege that the combination of rulemaking authority

in SDCL 49-41B-35 and the legislative findings in SDCL 49-41B-1 require the PUC

to promulgate specific rules defining “minimal adverse effects” associated with

proposed wind energy projects. 10 As the Intervenors envision it, these rules would

regulate the maximum levels of noise and shadow flicker upon which the grant of

all wind energy facility construction permits must be conditioned. 11 But this view

is little more than a critique of the PUC’s exercise of its rulemaking authority,

unconnected to a textual or other legal basis for relief. Simply put, there is no

requirement for the PUC to use its rulemaking authority to further define “minimal

adverse effects” resulting from wind energy facilities.

10. Codified legislative findings, such as those in SDCL 49-41B-1, are not
uncommon and carry the force of law as any other statutory text, but “[t]hey
should not be used to give meaning to other parts of the statute that the
words will not bear.” Jarrod Shobe, Enacted Legislative Findings and
Purposes, 86 U. Chi. L. Rev. 669, 675 (2019) (cleaned up).

11. The Intervenors go further than this, conceding both in the their brief and at
oral argument that any amount of noise and shadow flicker generated by
wind turbines is intolerable to them and that the PUC should simply prohibit
these effects on the properties of non-participating landowners as a condition
of issuing a construction permit. This perspective, while perhaps defensible
as a free-standing policy position, severely undercuts the textual argument
they make here by suggesting that the only acceptable interpretation of
“minimal adverse effects” is none at all.

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[¶25.] The Intervenors’ arguments concerning the PUC’s obligation to ensure

“minimal adverse effects” are better viewed in the context of SDCL 49-41B-22,

which sets out the burden of proof placed on applicants during the permitting

process and the evidence the applicant must present in order to receive a permit.

As noted above, this section requires that the applicant “establish by a

preponderance of evidence that: . . . [t]he proposed facility will comply with all

applicable laws and rules” and that “[t]he facility will not substantially impair the

health, safety or welfare of the inhabitants[.]” See supra note 6.

[¶26.] As “an administrative tribunal with expertise,” In re W. River Elec.

Ass’n, Inc., 2004 S.D. 11, ¶ 25, 675 N.W.2d 222, 230 (citation omitted), the PUC is

tasked with reviewing the evidence submitted by applicants and assessing their

compliance with the directives of SDCL 49-41B-22. As it relates to this appeal, the

PUC’s factual findings and conclusions of law make the express determination that

Crowned Ridge “satisfied [its] burden of proving all of the requirements imposed by

SDCL 49-41B-22[.]” By imposing conditions limiting the level of noise and shadow

flicker that the Project may produce, the PUC required compliance with Deuel

County ordinances. The PUC was sufficiently convinced by the evidence presented

that noise and shadow flicker within those limits would not substantially impair the

health, safety, or welfare of local residents—a conclusion the Intervenors do not

directly challenge. To the extent the Legislature requires the PUC to ensure the

Project will produce “minimal adverse effects,” it has done so by crafting the noise

and shadow flicker limits based on its careful review of the voluminous evidence

presented by the parties.

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[¶27.] We conclude, therefore, that the PUC has satisfied the obligation

imposed on it by the Legislature in its consideration of Crowned Ridge’s application,

and the PUC was not otherwise required to promulgate rules defining “minimal

adverse effects.”

Equal Protection 12

[¶28.] Additionally, the Intervenors allege that the PUC’s “ad hoc”

determinations of limits for sound and shadow flicker violate the equal protection

provisions of the state and federal constitutions. They point to differences between

the permit conditions approved for Crowned Ridge and those imposed for the

separate and unrelated Prevailing Wind Park project described above. The

Intervenors claim that the PUC’s imposition of regulatory limits on a case-by-case

basis allows applicants like Crowned Ridge to exert influence over the permitting

process by submitting “aggressively devised” projects, which necessarily results in

the PUC’s approval of higher sound or shadow flicker levels.

[¶29.] As an initial matter, we note that as an administrative agency the

PUC “is not bound by stare decisis, and therefore it can redefine its views to reflect

its current view of public policy regarding the utility industry.” 2004 S.D. 11, ¶ 25,

675 N.W.2d at 230. See also Yellow Robe v. Bd. of Trustees of South Dakota Ret.

Sys., 2003 S.D. 67, ¶ 14, 664 N.W.2d 517, 520 (“An agency’s view of what is in the

public interest may change, either with or without a change in circumstances.”

12. There is some question whether the Intervenors preserved an equal
protection claim. They did not make the argument before the PUC and
include only a single-sentence reference to equal protection in their circuit
court brief. Preserved or not, however, the Intervenors have not identified a
colorable equal protection claim here for the reasons we explain below.

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(citations omitted)). Moreover, conducting a studied, individualized determination

reflects the very nature of a contested case hearing and is precisely what

administrative tribunals possessing expertise, like the PUC, are designed to do.

[¶30.] Regardless, the Intervenors’ claim appears unsustainable under a

basic application of our decisional law regarding equal protection. As we have

previously held, “[t]his Court has adopted a two-pronged test regarding equal

protection when legitimacy, suspect classes and fundamental rights are not

involved[.]” Cheyenne River Sioux Tribe Tel. Auth. v. Pub. Utils. Comm’n of South

Dakota, 1999 S.D. 60, ¶ 46, 595 N.W.2d 604, 614 (cleaned up). The principal

inquiries under that test are “(1) [w]hether the statute does set up arbitrary

classifications among various persons subject to it[ and] (2) [w]hether there is a

rational relationship between the classification and some legitimate purpose.” Id.

[¶31.] Here, the Intervenors are not challenging the constitutionality of a

specific statute as is often the case in equal protection claims. Rather, the

Intervenors take issue with the outcome of a contested case before an

administrative tribunal. At the heart of the Intervenors’ claim is their belief that

the difference between the noise and shadow flicker conditions for Crowned Ridge

and Prevailing Wind Park reflect unconstitutional disparity.

[¶32.] Beyond this conclusory view, however, the Intervenors’ equal

protection argument is not further developed. Indeed, the Intervenors simply

presume the difference between the limits for the Crowned Ridge and Prevailing

Winds projects implicate equal protection concerns solely because they are different,

and the Intervenors make no attempt to analyze their claim under the rules

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governing equal protection. Under the circumstances, we conclude that the

Intervenors have not identified a cognizable equal protection claim. 13

“De Facto Easements”

[¶33.] “An easement is a property interest in land owned by or in the

possession of another, which entitles the easement owner to a limited use or

enjoyment of the land in which the interest exists.” Picardi v. Zimmiond, 2004 S.D.

125, ¶ 16, 689 N.W.2d 886, 890 (cleaned up). “Easements may be created by written

grants, pursuant to a plat or by force of law.” Kokesh v. Running, 2002 S.D. 126, ¶

12, 652 N.W.2d 790, 793. The provisions of SDCL 43-13-2 list various types of

easements recognized in South Dakota, including “[t]he right of receiving air, light,

or heat from or over, or discharging the same upon or over land[.]” SDCL 43-13-

2(8).

[¶34.] Here, the Intervenors claim that the intermittent occurrence of shadow

flicker as a result of the operation of the wind turbines constitutes a discharge of

13. The United States Supreme Court has recognized the potential for equal
protection claims brought by a “‘class of one,’ where the plaintiff alleges that
she has been intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in treatment.” Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 1074, 145 L. Ed. 2d
1060 (2000) (citations omitted). In a concurring opinion in Olech that has
since been cited by several federal courts of appeals, Justice Breyer observed
that the case presented a sufficiently pled class-of-one equal protection claim
because the plaintiff alleged more than simply disparate treatment,
contending a government official “took ‘vindictive action’ or acted with
‘illegitimate animus’ against the claimant.” Mathers v. Wright, 636 F.3d 396,
401 n.2 (8th Cir. 2011) (quoting Justice Breyer’s concurring opinion in Olech,
528 U.S. at 566, 120 S. Ct. at 1075, and citing cases discussing Olech). We
have never applied Olech or considered a class-of-one equal protection claim,
and this case does not present such an opportunity. The Intervenors have
not cited Olech and have not described anything more than the PUC’s
different conditions in different wind farm permit applications.

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light as contemplated by SDCL 43-13-2(8). The Intervenors argue that the PUC’s

issuance of the permit is equivalent to granting an easement in favor of Crowned

Ridge for the discharge of light over their property without the Intervenors’ consent.

This argument is essentially the same claim we considered and rejected in a

decision also issued today, Ehlebracht v. Deuel County Board of Adjustment, 2022

S.D. 18, 972 N.W.2d 464. 14

[¶35.] In Ehlebracht v. Deuel County, we were unable to reconcile the text of

SDCL 43-13-2(8) with the nature of shadow flicker, noting that the “plain language

[of SDCL 43-13-2(8)] does not support the . . . argument that the ‘adulterated light’

resulting from the operation of wind turbines constitutes a discharge of light.” Id. ¶

29, 972 N.W.2d at 474. We further observed that “[w]ind turbines no more

discharge light by casting a shadow than does a grain silo or a multi-story office

building” and noted the irrefutable fact “that the source of light is, of course, the

sun.” Id. The same reasoning is true here, and we similarly conclude that the

operation of wind turbines does not result in a discharge of light, thereby rendering

any application of SDCL 43-13-2(8) inapposite.

[¶36.] Moreover, as the circuit court noted, the PUC is an administrative

body charged by the Legislature with considering applications for wind energy

facility construction permits, not determining questions involving easement law.

The PUC’s issuance of the permit in this case does not subject the Intervenors’

property to an easement. Id. ¶ 35, 972 N.W.2d at 475. Crowned Ridge retains no

14. The appellants in Ehlebracht v. Deuel County are the same individuals
intervening in the permitting process here and were represented by the same
attorney during their appeal in that case.

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interest in the Intervenors’ property and the Intervenors have not been forced to

relinquish any legally recognized property rights. They are not bound by any

agreement with Crowned Ridge and may compel Crowned Ridge’s compliance with

the shadow flicker limits imposed by the permit conditions set by the PUC.

[¶37.] Therefore, we conclude here that the statutory provisions of SDCL 43-

13-2(8) are not implicated by the PUC’s decision to issue the construction permit to

Crowned Ridge.

The Issuance of the Permit as a Taking15

[¶38.] The United States Constitution prohibits the taking of property “for

public use, without just compensation.” U.S. Const. amend. V. “Takings

jurisprudence at a federal level involves, at a minimum, two distinct categories of

deprivations: (1) physical occupations of land; or (2) regulatory takings.” Krsnak v.

Brant Lake Sanitary Dist., 2018 S.D. 85, ¶ 16, 921 N.W.2d 698, 702.

[¶39.] Within these classifications, we have previously held that claimants

seeking compensation from the government under a takings claim must generally

pursue their claim under one of four theories:

1) “a per se regulatory physical taking under Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S. Ct.

15. The appellants in Ehlebracht v. Deuel County made a similar, but distinct,
claim in which they argued their substantive due process rights were violated
under multiple theories, including the contention that the exercise of Deuel
County’s zoning authority effected a taking. After holding that the exercise
of the county’s zoning authority did not violate due process, we concluded
that the appellants could not reform their due process claim into a takings
theory. See 2022 S.D. 18, ¶ 46, 972 N.W.2d at 477. Here, however, the
Intervenors do not allege a substantive due process violation and have
presented a more direct takings argument, which we address on the merits.

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3164, 73 L. Ed. 2d 868 (1982), where government requires an
owner to suffer a permanent physical invasion of her property”;

2) “a per se total regulatory taking under Lucas v. South
Carolina Coastal Council, 505 U.S. 1003, 112 S. Ct. 2886, 120 L.
Ed. 2d 798 (1992), that deprives an owner of all economically
beneficial uses of the property”;

3) “a regulatory taking under Penn Central Transp. Co. v. City of
New York, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978),
when a temporary or partial taking is alleged”; or

4) “a land-use exaction violating the standards as set forth in
Nollan v. California Coastal Comm’n., 483 U.S. 825, 107 S. Ct.
3141, 97 L. Ed. 2d 677 (1987), and Dolan v. City of Tigard, 512
U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994).”

Benson v. State, 2006 S.D. 8, ¶ 46, 710 N.W.2d 131, 149 (cleaned up) (citing Lingle

v. Chevron U.S.A. Inc., 544 U.S. 528, 538–39, 545–48, 125 S. Ct. 2074, 2081–82,

2086–87, 161 L. Ed. 2d 876 (2005)).

[¶40.] The text of our South Dakota Constitution also contains a takings

clause; however, it differs from the federal Constitution in one important respect.

Article VI, section 13 of the South Dakota Constitution states: “Private property

shall not be taken for public use, or damaged, without just compensation . . . .”

(Emphasis added). Recognizing consequential “damage” to property as a

compensable result of government action “provides an additional theory by which a

plaintiff may bring a claim for damages against the state.” Krier v. Dell Rapids

Twp., 2006 S.D. 10, ¶ 23, 709 N.W.2d 841, 847.

[¶41.] In order to recover under this consequential damages theory, the

plaintiff must show that the injury is “peculiar to the owner’s land and not of a kind

suffered by the public as a whole.” Id. “The injury to the plaintiff ‘must be different

in kind and not merely in degree from that experienced by the general public.’” Id.

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¶ 26, 709 N.W.2d at 848 (quoting Hurley v. State, 82 S.D. 156, 163, 143 N.W.2d 722,

726 (1966)).

[¶42.] It is unclear which of the taking or damage theories outlined above the

Intervenors allege is applicable to the actions of the PUC. Beyond the bare

assertion in their brief that the issuance of the permit would result in a “per se”

taking, they make no attempt to analyze their claim under our takings precedent.

Although the Intervenors cite the recent United States Supreme Court decision of

Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 210 L. Ed. 2d 369 (2021), to support

their claim that the permit results in a per se physical taking, the Intervenors’

reliance on the case is misplaced.

[¶43.] In Cedar Point, the Supreme Court examined a California law that

granted labor organizations a right of access to private farms in order to speak with

farm laborers at various times throughout the day, up to 120 days per year. 141 S.

Ct. at 2069. Two California fruit farmers argued that the law constituted a per se

physical taking because it required them to allow union representatives to enter

and remain on their farms. Id. at 2069–70. After examining its takings

jurisprudence, the Court concluded, “The access regulation appropriates a right to

invade the growers’ property and therefore constitutes a per se physical taking.” Id.

at 2072.

[¶44.] Here, however, there is no physical invasion of the Intervenors’

property in any legally cognizable sense, as a survey of principal “physical-invasion”

takings decisions illustrates. See, e.g., id. at 2074 (the right of union officials “to

literally ‘take access’” to the farmers’ operations); Loretto, 458 U.S. at 422, 102 S.

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Ct. at 3169 (the installation of cable boxes on a privately owned apartment

complex); Kaiser Aetna v. United States, 444 U.S. 164, 168, 100 S. Ct. 383, 387, 62

L. Ed. 2d 332 (1979) (the right of public access to a private marina by boat); United

States v. Causby, 328 U.S. 256, 259, 66 S. Ct. 1062, 1064, 90 L. Ed. 1206 (1946)

(military aircraft flying low over the rooftops of private homes); see also Rupert v.

City of Rapid City, 2013 S.D. 13, ¶ 10, 827 N.W.2d 55, 61 (“[A]n action by a

landowner for inverse condemnation is maintainable where a governmental entity

causes an invasion of the land by water, earth, sand, or other matter or artificial

structures placed upon it . . . .”) (cleaned up).

[¶45.] Despite invoking the per se taking designation, the Intervenors have

failed to support their claim under a recognized legal theory. Under the

circumstances, we conclude that PUC’s decision to approve Crowned Ridge’s permit

application to construct wind turbines on sites not owned by the Intervenors was

not a physical invasion of their property.

[¶46.] Beyond this, Intervenors have not suggested this case involves a per se

regulatory taking under Lucas, 505 U.S. 1003, 112 S. Ct. 2886, or a partial

regulatory taking under Penn Central, 438 U.S. 104, 98 S. Ct. 2646. And no

governmental entity has exacted an easement from the Intervenors in exchange for

the grant of a building permit or zoning variance as would establish a taking under

Nollan, 483 U.S. 825, 107 S. Ct. 3141, and Dolan, 512 U.S. 374, 114 S. Ct. 2309.

[¶47.] If the Intervenors’ arguments suggest any sort of taking claim, it is, at

best, the assertion that the PUC’s decision to grant Crowned Ridge’s application has

caused compensable damages in a Krier-style claim arising under Article VI, section

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13 of the South Dakota Constitution. As we have previously held, this type of claim

does not require “that the damage . . . be caused by a trespass or an actual physical

invasion of the owner’s real estate.” Rupert, 2013 S.D. 13, ¶ 10, 827 N.W.2d at 61

(cleaned up). However, the Intervenors have not alleged, much less established,

that the noise and shadow flicker would satisfy Krier’s specific damage requirement.

[¶48.] We conclude, therefore, that the Intervenors have not established that

the PUC exceeded its authority by issuing the construction permit to Crowned

Ridge under the theory that the permit resulted in an uncompensated taking under

the federal or state constitutions.

Foreclosure of a Nuisance Claim as a Taking16

[¶49.] The provisions of SDCL 21-10-2 state that “[n]othing which is done or

maintained under the express authority of a statute can be deemed a nuisance.”

The Intervenors assert that by issuing the permit, the PUC has foreclosed the

prospects of a future nuisance claim, thereby resulting in a compensable taking. As

support for their argument, the Intervenors cite an Iowa Supreme Court decision,

Bormann v. Board of Supervisors ex. rel Kossuth County, 584 N.W.2d 309 (Iowa

1998).

16. This argument differs from a related claim considered and rejected in
Ehlebracht v. Deuel County. There, the appellants simply lamented what
they believed to be the inability to pursue a future nuisance claim as the
result of Crowned Ridge’s county permitting process. We held that the
nuisance argument was non-cognizable under the well-settled standards for
certiorari review. See 2022 S.D. 18, ¶ 39, 972 N.W.2d at 476. Here, however,
the Intervenors have alleged specifically that foreclosing a nuisance remedy
impacts a property right and constitutes a taking.

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[¶50.] In Bormann, the court held that “statutory immunity from nuisance

suits results in a taking of private property for public use without just

compensation.” Id. at 311. Citing its nineteenth century decision in Churchill v.

Burlington Water Co., 62 N.W. 646, 647 (Iowa 1895), the Iowa Supreme Court

reaffirmed its view “that the right to maintain a nuisance is an easement.” 584

N.W.2d at 315. Therefore, eliminating that right through a legislative grant of

nuisance immunity, the court reasoned, is a taking.

[¶51.] But the decision in Bormann appears to be an outlier. We have never

regarded the right to maintain a nuisance as an easement. See Schliem v. State ex

rel. Dep’t of Transp., 2016 S.D. 90, ¶ 14 n.10, 888 N.W.2d 217, 224 n.10 (“What

property is and the rights that attach to ownership are primarily a matter of state

law.” (citation omitted)). Nor have we held that statutes providing immunity from

nuisance suits effect a taking, and neither, it appears, have any other states. See

Honomichl v. Valley View Swine, LLC, 914 N.W.2d 223, 232–33 (Iowa 2018) (“All

fifty states have right-to-farm laws that provide farmers with various forms of

statutory immunity from nuisance claims . . . but Iowa is the only state to hold that

the statutory immunity available under its right-to-farm law is unconstitutional in

any manner.”); see also Lindsey v. DeGroot, 898 N.E.2d 1251, 1259 (Ind. Ct. App.

2009) (“[W]e have found nothing to suggest that Indiana has adopted the seemingly

unique Iowa holding that the right to maintain a nuisance is an easement . . . .”);

accord Moon v. N. Idaho Farmers Ass’n, 96 P.3d 637, 644 (Idaho 2004).

[¶52.] We conclude that preempting nuisance suits under SDCL 21-10-2 does

not constitute a taking. Therefore, the Intervenors cannot, on that basis, challenge

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the PUC’s decision to grant the permit. See Schliem, 2016 S.D. 90, ¶ 13, 888

N.W.2d at 224 (“[T]he first step in any Article VI analysis must be to determine

whether a recognized property right has been infringed by state conduct.”).

Conclusion

[¶53.] The Intervenors have failed to raise any meritorious issues upon which

the final decision and order of the PUC may be reversed or modified. We affirm.

[¶54.] KERN, DEVANEY, and MYREN, Justices, and ANDERSON, Circuit

Court Judge, concur.

[¶55.] ANDERSON, Circuit Court Judge, sitting for JENSEN, Chief Justice,

disqualified.

[¶56.] JENSEN, Chief Justice, deeming himself disqualified, did not

participate.

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