Moulton v. State, s. 15373

• Decision Date: 09 September 1987
• Docket Number: 15382 and 15384,15374,15379,Nos. 15373,s. 15373
• Citation: 412 N.W.2d 487
• Parties: Calvin L. MOULTON, Herma Marsden, Franklyn Craft, R.C. Stensen, Harold Ramse, Kenneth Harrod, Mary Kuppinger Jordon, and Adelaide M. Ward, on behalf of themselves and all of the Cabin Owners within Custer State Park, Custer County, South Dakota, similarly situated, Plaintiffs, Appellants (# 15373, 15374), and Appellees (# 15382, 15384), v. STATE of South Dakota, the South Dakota Department of Game, Fish and Parks; the South Dakota Game, Fish and Parks Commission; and John Cimpl, Robert Ingle, Walter Black, Owen Wipf, Harvey Thayer, Robert Reder, Marlon Thielsen and David Brost, individually, and in their capacity as members of the South Dakota Game, Fish and Parks Commission, Defendants and Appellees (# 15373), The South Dakota Game, Fish and Parks Commission, Appellee (# 15374, 15379), State of South Dakota, and the Department of Game, Fish and Parks of the State of South Dakota, Appellants (# 15382).
• Court: South Dakota Supreme Court

Page 487

412 N.W.2d 487

Calvin L. MOULTON, Herma Marsden, Franklyn Craft, R.C Stensen, Harold Ramse, Kenneth Harrod, Mary Kuppinger Jordon, and Adelaide M. Ward, on behalf of themselves and all of the Cabin Owners within Custer State Park, Custer County, South Dakota, similarly situated, Plaintiffs Appellants (# 15373, 15374), and Appellees (# 15382 15384), v. STATE of South Dakota, the South Dakota Department of Game Fish and Parks; the South Dakota Game, Fish and Parks Commission; and John Cimpl, Robert Ingle, Walter Black, Owen Wipf, Harvey Thayer, Robert Reder, Marlon Thielsen and David Brost, individually, and in their capacity as members of the South Dakota Game, Fish and Parks Commission, Defendants and Appellees (# 15373), The South Dakota Game, Fish and Parks Commission, Appellee (# 15374, 15379), State of South Dakota, and the Department of Game, Fish and Parks of the State of South Dakota, Appellants (# 15382).

Nos. 15373, 15374, 15379, 15382 and 15384.

Supreme Court of South Dakota.

Argued Feb. 17, 1987.

Decided Sept. 9, 1987.

Stephen L. Wilson, Roseville, Minn., for plaintiffs, appellants, and appellees Cabin Owners; Jane M. Farrell and Patrick M. Ginsbach of Farrell, Farrell & Ginsbach, Hot Springs, on brief.

Craig M. Eichstadt, Asst. Atty. Gen., Pierre, for defendants, appellees, and appellants State of S.D., Dept. of Game, Fish and Parks, and Game, Fish and Parks Com'n; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

This is a voluminous compilation of appeals and notices of review originally emanating from South Dakota Game, Fish and Parks Commission's (Defendants) decision to not renew cabin site lease permits held by cabin owners (Plaintiffs) in Custer State Park. There are approximately 4,000 pages of record, exhibits and testimony, plus over 300 pages of briefs and accompanying appendices. Following our remand in Moulton v. State, 363 N.W.2d 405 (S.D.1985) (Moulton I ), the circuit court decided various legal questions presented to it. The following issues are presently before this Court on appeal.

(1) # 15373--Plaintiffs appeal lease nonrenewal policy asserting theories of

(a) estoppel regarding alleged ninety-nine-year leases

(b) constitutional law

1. substantive due process

2. equal protection

3. procedural due process

4. 42 U.S.C. Sec. 1983

(c) environmental protection

(2) # 15382--Defendants appeal circuit court's dismissal of Plaintiffs' administrative appeal addressing termination of cabin permits

#

# 15384--Plaintiffs file notice of review

(3) # 15374--Plaintiffs appeal circuit court's dismissal of their appeal from Commission's 1984 decision to raise cabin site rentals

# 15379--Defendants file notice of review

These issues are treated seriately. Respectively, we reverse and remand for trial, reverse and remand with instructions, and reverse.

FACTS

We refer to the facts in our prior opinion, Moulton I, 363 N.W.2d 405. Recapitulating, Custer State Park Board was created in 1919, and authorized, legislatively, to purchase lands designated as Custer State Park. Custer State Park Board was abolished and replaced by the South Dakota Park Board in 1939 which itself was, in 1945, transformed into the Department of Game, Fish and Parks.

Beginning in 1921, erection of cottages within Custer was encouraged. Structures built were owned by individuals while the land upon which cabins rested remained state property. It appears that some original cabin owners may have been offered ninety-nine-year leases by Park officials and this is indicated by affidavits, a deposition, and in two instances by written lease agreement. A former Park official, E.L. Burns, who served from 1937 non-inclusively to 1946, noted that cabin site leases during those periods did not contain a fixed term of years and only detailed the amount of the annual lease payment. This former official further stated that the general feeling toward cabin owners was that if they maintained their cabins and broke no park rules, their cabins would not be disturbed. Subsequent leases (dating from approximately 1949) contained terms of ten or five years.

In 1966, the legislature amended the South Dakota Code to repeal that section containing an expressed legislative policy of encouraging private cabin sites in Custer State Park. At a meeting held in December 1967, the Game, Fish and Parks Commission (Commission) decided to terminate private cabin site leases in Custer State Park effective December 31, 1982. Cabin site lessees were not given advance notice of this meeting, but were apprised of Commission's decision to discontinue cabin leases. All lease permits issued in 1978 contained a provision that they would not be renewed beyond December 31, 1982. Some cabin owners objected to the nonrenewable leases but they later relented upon learning that the alternative to not signing was a failure to renew for any period at all.

In 1978, cabin owners organized an unincorporated association designed to explore alternatives to removing cabins from Custer State Park. A lawsuit was filed in 1980 challenging Commission's December 1967 decision. In 1981, the parties entered into a stipulation for dismissal of this lawsuit, which provided that Commission's 1967 decision to terminate cabin site leases was only a statement of policy, not binding on the present Commission. Commission met on June 4 and 5, 1982 to again consider cabin site leases within Custer State Park. On June 5, 1982, Commission unanimously voted to allow all leases to terminate December 31, 1982.

On June 15, 1982, some cabin owners filed a Notice of Appeal to Commission's decision. This action triggered events which led to this Court's decision in Moulton I. Encapsulating, in Moulton I, we held inter alia:

(1) The abandonment of legislative policy "encouraging" private cabin sites meant that cabin leases may be terminated at Commission's discretion; and

(2) Subsequent lease agreements for a term of years signed by one Kenneth Harrod supersede prior lease agreements, and oral representations must yield to written contracts.

While we were deciding Moulton I, Commission, in 1984, increased annual cabin site rents from $35 to $375-$500. Upon remand, the circuit court ruled as follows:

(1) Granted State's Motion for Summary Judgment holding that Commission's decision to discontinue lease renewal policy was valid, and estoppel, constitutional, and environmental protection claims raised by cabin owners were unpersuasive. Plaintiffs appeal.

(2) Dismissed Plaintiffs' administrative appeal (without prejudice) concerning Commission's June 1982 decision not to renew cabin site leases. Defendants appeal. Plaintiffs file notice of review.

(3) Dismissed Plaintiffs' administrative appeal regarding the 1984 rent increase on the theory that contested case procedure was not applicable. Plaintiffs appeal. Defendants file notice of review.

These appeals and notices of review were consolidated for presentation before this Court.

DECISION

I. ESTOPPEL

Plaintiffs contend the circuit court erroneously granted Defendants' Motion for Summary Judgment. They urge, based upon the settled record, that Defendants should be estopped from denying the validity of the ninety-nine-year leases or, in the alternative, that we reverse and remand because genuine issues of material fact exist as to whether estoppel may be asserted in this situation. Defendants counter that (a) there exists no substantial evidence of record that such leases existed or that promises of leases were made; (b) no estoppel of a state government entity is possible under South Dakota law; and (c) our prior holding in Moulton v. State, 363 N.W.2d 405, 408-09 (S.D.1985), strongly implies preclusion of Plaintiffs' estoppel claim. We are convinced that genuine issues of material fact exist and we reverse and remand for trial.

a. Whether ninety-nine-year leases were offered to Plaintiffs is a genuine issue of material fact.

As to the existence of ninety-nine-year leases or promises of same, the record is sketchy. Filed, are five affidavits and one deposition from Plaintiffs all stating that promises of ninety-nine-year leases were made. ¹ Additionally, attached to Kenneth Harrod's affidavit is a "Term Occupancy Permit" dated June 24, 1939, issued by Custer State Park Board, which gives to Rose M. Hutchins Briggs (a Harrod predecessor) permission to use cabin site land "for a period of 99 years from date hereof[.]" Another "Term Occupancy Permit" in identical form to the one above, was issued to the School and Public Land Department; a lease term of ninety-nine years is specified. In years prior to 1949, in most instances, no specific term of years appears on the "Term Occupancy Permit"; ² rather, that space was left blank. An affidavit by E.L. Burns, an Assistant Superintendent and later Superintendent of Custer State Park non-inclusively from 1937 to 1946, recites that "the general feeling toward the cabin owners ... was that as long as [they] maintained their cabin sites in a satisfactory condition and did not violate any park rules or regulations, the cabins would not be bothered." Therefore, we do not agree with Defendants that the record is devoid of evidence supporting ninety-nine-year leases.

Defendants alternately claim that any evidence existing is rendered useless by virtue of its hearsay status. This assertion is erroneous. "Term Occupancy Permits" issued by Custer State Park Board to both Harrod predecessor Rose M. Hutchins Briggs and to the School and Public Land Department specify that ninety-nine-year leases were offered and accepted. These leases are clearly statements offered against a declarant party (affidavits of Sweem, Kuppinger, Ward, and Craft arguably also contain statements against interest, see n. 1 and accompanying text, supra ), which has been expressly designated as "not hearsay" by the legislature. SDCL 19-16-3. See United States v....