Pennington County Commissioner George Ferebee has suffered a setback in his ongoing defense against a charge that he violated the county’s septic laws, and now the case will become a criminal matter.
Magistrate Judge Eric Strawn filed a memorandum of decision this week in which he barred Ferebee from pursuing counterclaims against the county, and also clarified that the charge against Ferebee will proceed toward trial as a criminal rather than a civil proceeding.
In an interview with the Journal this week, Ferebee vowed to fight the judge’s ruling and to continue opposing the septic laws, which require some county residents to have their septic tanks pumped, inspected and permitted regularly.
He considers the laws, which were adopted in 2010, to be unconstitutional applications of new requirements and penalties to a septic system that he installed before the laws were enacted.
“We fought a cold war for 40 years over dictatorship so we could maintain our freedom,” Ferebee said Thursday when asked to explain his persistence in resisting the septic laws. “I’ll be damned if I’m going to give it up now.”
The county Planning Department has issued about 4,000 septic permits as part of a phased-in approach since the septic laws were adopted six years ago. The State’s Attorney’s Office filed its complaint against Ferebee in October 2015 after the Planning Department had tried unsuccessfully since at least February 2015 to bring Ferebee into compliance. Ferebee’s septic system is on his ranch in rural Hill City.
The complaint lists a maximum penalty of up to 30 days in jail and a $500 fine, but that could be applied to each day that a violation occurred.
The case has progressed through several court proceedings and numerous filings of motions, briefs and replies. Ferebee has appeared in court and made filings on his own, without representation by an attorney. The county’s case was prosecuted at first by Kinsley Groote, a deputy state’s attorney, and more recently by Chad Callahan, an assistant state attorney general who said he came aboard because of potential conflicts arising out of Ferebee’s oversight role, as a county commissioner, over the State’s Attorney’s Office.
Neither Groote nor Callahan responded to phone messages from the Journal seeking their reaction to the judge’s decision.
The decision covered six issues. One was Ferebee’s contention that he did not receive an opportunity to appeal the county’s enforcement of the septic laws, as promised by a provision in the laws that gives aggrieved property owners 30 days after receipt of a “deficiency notice” to make an appeal to the county planning director. Further appeals are allowed to the Planning Commission and County Commission.
According to Judge Strawn’s written decision, Ferebee never argued that he filed an appeal within the 30-day window. “As a result,” Strawn wrote, “this Court will not consider the argument at this time.”
Ferebee, in his interview with the Journal, said the county never sent him a deficiency notice as described in the septic laws. A Journal review of the county notices sent to Ferebee confirmed that they did not bear the phrase “deficiency notice.”
But the notices did advise Ferebee of the requirement to have his septic system pumped and inspected to ensure compliance with county laws, and the notices further advised him that the Planning Department did not believe his property qualified for any exemption from the laws.
The department sent the notices by first-class mail Feb. 18 and April 20, 2015, and again by certified mail June 24, 2015. The certified mail was not claimed.
Ferebee contends those documents were merely notices of the pumping requirement and were not the official “deficiency notice” described in law. Therefore, he claims, he had nothing to appeal.
“I couldn’t appeal something I didn’t receive,” he said.
But Ferebee suffered an unfavorable decision by the judge on that issue and won no major victories on four of the other six issues covered in the memorandum. The remaining issue is Ferebee’s request for sanctions against the prosecutors for several errors he claims they made, and subsequently failed to correct, in some of their court filings. Judge Strawn noted in his decision that there is still a pending opportunity for the prosecutors to file a response on that issue.
In the final sentence of the decision, the judge wrote that a jury trial will be scheduled. Ferebee told the Journal he will welcome the opportunity to present his case to a panel of his peers.
“I really, really get tired of judges deciding what the facts are,” he said.