Craft v. Wipf, No. 87-5117

CourtU.S. Court of Appeals — Eighth Circuit
Writing for the CourtMcMILLIAN
Citation836 F.2d 412
PartiesFranklyn H. CRAFT, Herma Marsden, Harold Ramse, Kenneth Harrod, Mary Kuppinger Jordan, Roger Ward and Gene Neuswanger, on behalf of themselves and all other cabin owners within Custer State Park, Custer County, South Dakota, similarly situated, and the South Dakota Cabin Owners Association, an unincorporated association, Appellees, v. Owen WIPF, Robert Ingle, Walter Black, John Cimpl, Harvey Thayer, Robert Reder, David Brost, Neil Bien, Jeremiah Murphy, Richard Meyer and Marlon Thielsen, individually, and in their capacity as present or former members of the South Dakota Game, Fish and Parks Commission, and their successors in office; Jack Merwin, individually, and in capacity as former Secretary, South Dakota Department of Game, Fish and Parks; Jeff Stingley, individually, and in capacity as Secretary, South Dakota Department of Game, Fish and Parks and Warren Jackson, individually, and in his capacity as Division Director, Division of Custer State Park, South Dakota Department of Game, Fish and Parks and his successors in office, Appellants.
Decision Date30 December 1987
Docket NumberNo. 87-5117

Page 412

836 F.2d 412
Franklyn H. CRAFT, Herma Marsden, Harold Ramse, Kenneth
Harrod, Mary Kuppinger Jordan, Roger Ward and Gene
Neuswanger, on behalf of themselves and all other cabin
owners within Custer State Park, Custer County, South
Dakota, similarly situated, and the South Dakota Cabin
Owners Association, an unincorporated association, Appellees,
v.
Owen WIPF, Robert Ingle, Walter Black, John Cimpl, Harvey
Thayer, Robert Reder, David Brost, Neil Bien, Jeremiah
Murphy, Richard Meyer and Marlon Thielsen, individually, and
in their capacity as present or former members of the South
Dakota Game, Fish and Parks Commission, and their successors
in office; Jack Merwin, individually, and in capacity as
former Secretary, South Dakota Department of Game, Fish and
Parks; Jeff Stingley, individually, and in capacity as
Secretary, South Dakota Department of Game, Fish and Parks
and Warren Jackson, individually, and in his capacity as
Division Director, Division of Custer State Park, South
Dakota Department of Game, Fish and Parks and his successors
in office, Appellants.
No. 87-5117.
United States Court of Appeals,
Eighth Circuit.
Submitted June 10, 1987.
Decided Dec. 30, 1987.

Page 413

Mark A. Moreno, Asst. Atty. Gen., Pierre, S.D., for appellants.

Stephen L. Wilson, Roseville, Minn., for appellees.

Before McMILLIAN, ROSENN * and JOHN R. GIBSON, Circuit Judges.

McMILLIAN, Circuit Judge.

Owen Wipf and fourteen other named South Dakota state officials appeal from an order entered in the District Court for the District of South Dakota denying their motion for summary judgment in a 42 U.S.C. Sec. 1983 civil rights action. Franklyn Craft and other owners of cabins in Custer State

Page 414

Park allege in this action that certain state officials, who are or were members or executives of the South Dakota Game, Fish and Parks Commission (Commission) or the South Dakota Department of Game, Fish, and Parks (Department) had violated their due process and equal protection rights by refusing to renew their cabin permits and by increasing their rents because they asserted their constitutional rights. For reversal, the state officials argue that the district court erred in failing to grant summary judgment on the basis of qualified immunity. For the reasons discussed below, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.

This action was initiated by 48 owners of private cabins located in Custer State Park after state officials refused to renew site permits for their cabins. Beginning in the 1920s-1930s, South Dakota encouraged private citizens to build cabins on certain tracts of land in Custer State Park. The cabin owners allege that state officials promised the original cabin owners that their permits would be issued for a term of 99 years. Prior to 1949, cabin owners were issued renewable permits for an unspecified term of years. Beginning in 1949, a few permits were issued for a term of 10 years, but most permits issued still had no specific expiration date. From 1959 to 1982, all permits were issued or renewed for a term of 5 years.

In 1966, the South Dakota legislature repealed its statute which encouraged private cabin sites in Custer State Park and gave the Commission authority and control over cabin permits on state park land. In December 1967, in accordance with the discretionary authority granted by the legislature, the Commission met and adopted a policy ending all private cabin leasing in Custer State Park effective at the end of December 1982. The cabin owners were not notified of the December 1967 meeting and did not attend. Some cabin owners were informed of the termination decision immediately after the 1967 meeting, but most cabin owners were not notified of the decision until the mid-to-late 1970s.

In 1978, state officials issued cabin owners final permits, which were to expire on December 31, 1982. These permits contained a provision notifying the permit holder that the permit would not be renewed upon expiration. Some cabin owners attempted to protest this provision: one cabin owner attached a letter of protest to his signed permit; a second cabin owner crossed out the "no renewal" provision before signing the permit. State officials told these two cabin owners that unless they signed the permit as written, they would not be issued a permit for 1978-1982. Both owners then signed nonrenewable permits.

In 1978, the cabin owners organized an association to challenge the termination policy, and in 1980 they filed an action in state court challenging the Commission's decision. The lawsuit was dismissed by stipulation of the parties in April 1981. The parties agreed that the 1967 termination decision would be considered a "statement of policy" and not a final decision and that the Commission would not be bound by the 1967 decision.

On June 4-5, 1982, the Commission held a meeting to consider the issue of cabin permits. The cabin owners received notices of the hearing and many attended. Before the meeting, the cabin owners had sent the Commission an environmental impact statement which concluded that private cabins had only a negligible effect on the park's environment. At the meeting, cabin owners and other members of the surrounding community testified against termination of the permits. Other persons wrote to the Commission expressing their opposition to the proposed termination of the cabin permits. At the end of the second day of hearings, the Commission unanimously voted to terminate all private site permits at the end of 1982.

The cabin owners administratively appealed the decision and also filed declaratory judgment actions in state court. The state court enjoined removal of the cabins pending a decision in the declaratory judgment actions. On January 10, 1984, the

Page 415

state court entered judgment for the cabin owners and the state officials appealed.

In 1985 the South Dakota Supreme Court reversed the judgment which the state court had entered in favor of the cabin owners. Moulton v. State, 363 N.W.2d 405 (S.D.1985) (Moulton I ). The Supreme Court held that (1) the Commission acted within its statutory authority when it terminated the permits, (2) the 99-year lease given to the original cabin owners had been superseded by the subsequent permits for specific terms and the 1978-1982 nonrenewable permits, and (3) the cabin owners had not signed the specific term permits or the 1978-1982 nonrenewable permit under duress. Id. at 408-09. The South Dakota Supreme Court declined to reach the cabin owners' federal constitutional claims. Id. at 409.

While the lawsuits were pending in the state trial court, the cabin owners' permits expired. In December 1983, the Commission assessed the cabin owners the usual annual rent for the 1983 year. While the South Dakota Supreme Court was considering the appeal, the Commission met and decided to issue nonrenewable permits to the cabin owners for 1984. The Commission assessed an annual rent of $375.00 to $500.00. The annual rent assessed for the period from 1978 through 1983 was $35.00. The cabin owners were not notified of the meeting held to discuss the rent increase and did not attend. The Commission told the cabin owners that the rent increase was based on a professional appraisal. The cabin owners challenge the accuracy of the data on which the appraisal was based. They also assert that the increased rent is significantly higher than the rent on private cabin sites in other state parks in South Dakota.

Subsequent to the South Dakota Supreme Court decision in Moulton I, the cabin owners brought a Sec. 1983 action in federal district court challenging the state officials' refusal to renew the permits on substantive and procedural due process and equal protection grounds. The state officials moved for summary judgment on two grounds: (1) the cabin owners had failed to show that they had a constitutionally protected property interest in the permits and (2) the state officials were entitled to qualified immunity. The district court denied summary judgment, Craft v. Wipf, No. CIV 85-5092, slip op. at 18 (D.S.D. Sept. 5, 1986), and the state officials appealed.

The cabin owners moved to dismiss the appeal for lack of jurisdiction. This court held, however, that it had jurisdiction over the appeal and remanded the case to the district court for a specific ruling on qualified immunity. Craft v. Wipf, 810 F.2d 170, 171 (8th Cir.1987). On remand, the district court again denied the motion for summary judgment, ruling that the state officials were not entitled to qualified immunity. Craft v. Wipf, No. CIV 85-5092 (D.S.D. Feb. 9, 1987) (order). The state officials now appeal.

The sole issue before this court is whether the district court erred in holding that the state officials did not have qualified immunity. Government officials performing discretionary functions are entitled to qualified immunity from suit as long as their conduct does not violate "clearly...

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28 practice notes
  • Bliek v. Palmer, No. C 93-4083.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • February 1, 1996
    ...by the Constitution but by an independent source, such as state or federal law. Movers Warehouse, 71 F.3d at 718 (citing Craft v. Wipf, 836 F.2d 412, 416 (8th Cir.1987)); Zenco Dev. Corp., 843 F.2d at 1118. When the assertedly protected interest is a grant of a benefit or privilege from the......
  • Johnson-El v. Schoemehl, JOHNSON-E
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 17, 1989
    ...see Runge v. Dove, 857 F.2d 469, 471 n. 1 (8th Cir.1988) (discussion of law and fact questions under Mitchell ). Thus, in Craft v. Wipf, 836 F.2d 412 (8th Cir.1987), and Drake v. Scott, 812 F.2d 395, reh'g denied and modified on other grounds, 823 F.2d 239 (8th Cir.), cert. denied, --- U.S.......
  • McLin v. Trimble, No. 73237
    • United States
    • Supreme Court of Oklahoma
    • June 19, 1990
    ...on rehearing on other grounds, 823 F.2d 239, cert. denied, 484 U.S. 965, 108 S.Ct. 455, 98 L.Ed.2d 395 (1987). See also, Craft v. Wipf, 836 F.2d 412, 416 n. 1 (8th Cir.1987); Moreno v. Small Business Administration, 877 F.2d 715 (8th Cir.1989). If the undisputed facts in the case before us ......
  • Hill v. Hamilton County Public Hosp., No. C97-3109-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • April 26, 1999
    ...by the Constitution but by an independent source, such as state or federal law. Movers Warehouse, 71 F.3d at 718 (citing Craft v. Wipf, 836 F.2d 412, 416 (8th Cir.1987)); Zenco Dev. Corp., 843 F.2d at 1118. In this case, there is no dispute that as a member of the INA, Hill possessed a prot......
  • Request a trial to view additional results
28 cases
  • Bliek v. Palmer, No. C 93-4083.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • February 1, 1996
    ...by the Constitution but by an independent source, such as state or federal law. Movers Warehouse, 71 F.3d at 718 (citing Craft v. Wipf, 836 F.2d 412, 416 (8th Cir.1987)); Zenco Dev. Corp., 843 F.2d at 1118. When the assertedly protected interest is a grant of a benefit or privilege from the......
  • Johnson-El v. Schoemehl, JOHNSON-E
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 17, 1989
    ...see Runge v. Dove, 857 F.2d 469, 471 n. 1 (8th Cir.1988) (discussion of law and fact questions under Mitchell ). Thus, in Craft v. Wipf, 836 F.2d 412 (8th Cir.1987), and Drake v. Scott, 812 F.2d 395, reh'g denied and modified on other grounds, 823 F.2d 239 (8th Cir.), cert. denied, --- U.S.......
  • McLin v. Trimble, No. 73237
    • United States
    • Supreme Court of Oklahoma
    • June 19, 1990
    ...on rehearing on other grounds, 823 F.2d 239, cert. denied, 484 U.S. 965, 108 S.Ct. 455, 98 L.Ed.2d 395 (1987). See also, Craft v. Wipf, 836 F.2d 412, 416 n. 1 (8th Cir.1987); Moreno v. Small Business Administration, 877 F.2d 715 (8th Cir.1989). If the undisputed facts in the case before us ......
  • Hill v. Hamilton County Public Hosp., No. C97-3109-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • April 26, 1999
    ...by the Constitution but by an independent source, such as state or federal law. Movers Warehouse, 71 F.3d at 718 (citing Craft v. Wipf, 836 F.2d 412, 416 (8th Cir.1987)); Zenco Dev. Corp., 843 F.2d at 1118. In this case, there is no dispute that as a member of the INA, Hill possessed a prot......
  • Request a trial to view additional results

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