Judge: Lawsuit against county can proceed
Cable, Save Union County filed suit to stop proposed refinery
By Michele Linck Journal staff writer | Posted: Saturday, July 26, 2008
ELK POINT, S.D. -- On Friday, Ed Cable finally began to consider what could happen next in the lawsuit he and Save Union County filed March 20 against the Union County Board of Commissioners in an effort to stop the proposed Hyperion oil refinery.
On Thursday, Circuit Judge Steven Jensen ruled that Save Union County has no standing to sue because it owns no property in the county. He also said that four individuals -- Jason Quam, Dale Harkness, Arden Hanson and Burdette Hanson -- had joined in the lawsuit too late. Their names were added in a May 2 filing, failing to meet the requirement to file within 20 days of the commissioners' March 11 decision being published. However, Cable can continue as a plaintiff.
The lawsuit appealed the county board's vote creating special Energy Center Planned Development District zoning for the 400,000-barrel-per-day oil refinery the Dallas, Texas-based company is proposing to build just over three miles from Cable's rural Elk Point home.
"We're not totally satisfied," said Cable's attorney James Abourezk from his Sioux Falls office. "But we're still in court and that's what's important.... We believe we can win on the merits of the case."
Hyperion Refining spokesman Eric Williams said the company would not comment on Jensen's ruling because it is not a party to the lawsuit. Union County State's Attorney Jerry Miller was out of the office and did not return a phone message.
The commissioners created new zoning, Energy Center Planned Development District, for the 400,000-barrel-per-day oil refinery/energy center Hyperion Refining, of Dallas, Texas, proposes to build on a 3,882-acre site north of Elk Point.
The lawsuit claims the zoning violates the county's comprehensive plan and should not have been considered by the county, that the county allowed Hyperion to "evade" presenting detailed information and that it didn't follow proper procedures for public hearings, among other charges.
In his ruling, Jensen said only Cable qualified as a plaintiff. Although he owns no property, Jensen said, Cable lives close enough to the refinery site to show he could suffer injury different from that of the general public, presumably from the refinery's environmental, social and aesthetic effects, as Cable claimed.
Cable aid the next step is to conference with Abourezk, the judge and the county's attorney to find acceptable dates for a hearing on his original appeal.
"We think the legitimate outcome, based on other court cases decided in similar situations, would be to overturn the zoning that was done," Cable said. "It's just that simple."
Cable said he thinks the court will move more quickly now that the eligibility of the plaintiffs has been decided.
Cable declined to say how much the lawsuit was costing him, but noted that Save Union County, a refinery opposition group, was involved in fighting the refinery even before the lawsuit was filed. He said that group continues to pay some of the expenses.
County Board Chairman Doyle Karpen said he did not know how much the county has paid to defend the lawsuit. He said it is covered by the board's liability policy with EMC Insurance, whose attorney, William Garry, is representing the county.
Garry said Friday he could not talk because the matter is still pending.
On Thursday, Circuit Judge Steven Jensen ruled that Save Union County has no standing to sue because it owns no property in the county. He also said that four individuals -- Jason Quam, Dale Harkness, Arden Hanson and Burdette Hanson -- had joined in the lawsuit too late. Their names were added in a May 2 filing, failing to meet the requirement to file within 20 days of the commissioners' March 11 decision being published. However, Cable can continue as a plaintiff.
The lawsuit appealed the county board's vote creating special Energy Center Planned Development District zoning for the 400,000-barrel-per-day oil refinery the Dallas, Texas-based company is proposing to build just over three miles from Cable's rural Elk Point home.
"We're not totally satisfied," said Cable's attorney James Abourezk from his Sioux Falls office. "But we're still in court and that's what's important.... We believe we can win on the merits of the case."
Hyperion Refining spokesman Eric Williams said the company would not comment on Jensen's ruling because it is not a party to the lawsuit. Union County State's Attorney Jerry Miller was out of the office and did not return a phone message.
The commissioners created new zoning, Energy Center Planned Development District, for the 400,000-barrel-per-day oil refinery/energy center Hyperion Refining, of Dallas, Texas, proposes to build on a 3,882-acre site north of Elk Point.
The lawsuit claims the zoning violates the county's comprehensive plan and should not have been considered by the county, that the county allowed Hyperion to "evade" presenting detailed information and that it didn't follow proper procedures for public hearings, among other charges.
In his ruling, Jensen said only Cable qualified as a plaintiff. Although he owns no property, Jensen said, Cable lives close enough to the refinery site to show he could suffer injury different from that of the general public, presumably from the refinery's environmental, social and aesthetic effects, as Cable claimed.
Cable aid the next step is to conference with Abourezk, the judge and the county's attorney to find acceptable dates for a hearing on his original appeal.
"We think the legitimate outcome, based on other court cases decided in similar situations, would be to overturn the zoning that was done," Cable said. "It's just that simple."
Cable said he thinks the court will move more quickly now that the eligibility of the plaintiffs has been decided.
Cable declined to say how much the lawsuit was costing him, but noted that Save Union County, a refinery opposition group, was involved in fighting the refinery even before the lawsuit was filed. He said that group continues to pay some of the expenses.
County Board Chairman Doyle Karpen said he did not know how much the county has paid to defend the lawsuit. He said it is covered by the board's liability policy with EMC Insurance, whose attorney, William Garry, is representing the county.
Garry said Friday he could not talk because the matter is still pending.
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Just Think wrote on Aug 7, 2008 4:36 PM:
NEED TO WAIT wrote on Jul 28, 2008 3:27 PM:
the judge hasn't ruled on whether the action was legal or illegal, just that the suit can go forward. Remember, this is America and you can sue anyone for anything - doesn't mean that you win or are right. "
Mike Webster wrote on Jul 28, 2008 4:53 AM: