If there was a low point in the city's case against Fish Garbage Service, it came in August of 2011.
Former city landfill employee Randy Meidinger had been found not guilty in a jury trial of fraud and forgery charges for allegedly helping Fish Garbage Service cheat the city landfill out of hundreds of thousands of dollars in tipping fees.
Then came the dismissal of criminal charges against three Fish Garbage Service drivers alleged to have been involved in fraud at the landfill, followed by dismissals of the charges against George and Clifford Fish, the father-and-son team who owned the company that picked up trash throughout Rapid City.
All of which left the city's civil suit against the Fishes in a seemingly precarious position.
Nobody knew that better than Mayor Sam Kooiker, whose successful campaign to unseat Alan Hanks a couple of months earlier had been built at least in part on Kooiker's role in initiating the Fish Garbage Service investigation after acting on a tip he said he received in 2009.
Rapid City lawyer John Nooney, hired by the city to investigate the civil case against Fish, remembers when Kooiker approached him in 2011, after the last of the criminal cases had been dropped.
"The mayor said, 'John, you guys need to tell us whether we have a case, and if we don't, I need to know that so the city can make a decision on how it wants to proceed,'" Nooney recalled. "So after the criminal case didn't go very far … it obviously told us we needed to take a hard look at this to make sure there was a pursuable action."
And with the unanimous authorization to proceed from the Rapid City Council, Nooney began working, and within weeks, he began putting together the pieces that helped the city makes its case in the civil suit.
Nooney’s team would eventually assemble a body of evidence that painted a picture of mislabeled dumping by Fish Garbage Service that led to the civil settlement announced earlier this month.
In the settlement, George and Clifford Fish admit to "a series of fraudulent acts" to cheat the city out of dumping fees. The Fishes confirmed that "statements made by Mayor Kooiker accurately represented a course of action which had been undertaken by FGS to realize financial gain for FGS to the detriment of the city."
George and Clifford Fish also agreed to waive any legal action against the city or its employees or agents and to pay the city a total of $375,000.
In the end, the case that touched so many lives, costs hundreds of thousands of dollars to investigate and included an examination of some 400,000 documents turned, ultimately, on something that nearly everyone can relate to: manure.
"I think that one, manure, is the easy one for people to grasp," Nooney said this week.
A month after the last criminal case faltered in August 2011, Nooney was able to obtain from the prosecution tickets kept by Fish Garbage Service on loads the company dumped at the landfill. The Nooney team already had matching tickets kept by the landfill. But the tickets kept by the garbage service had had not been available until the failed criminal case was finished.
On those tickets kept by Fish Garbage Service, drivers had marked the origins of each load dumped at the landfill after passing over the scale at the entrance. Then they took the tickets back for the company.
Access to those tickets was the breakthrough Nooney needed to begin building his case.
"The tickets the drivers had written on, they were important because they helped us identify where loads had come from," he said.
That was especially important because the tickets also identified what was hauled from each business — or what was supposed to have been hauled. What was marked on the ticket wasn't always what was hauled in the truck, according to Nooney’s investigation.
In a painstaking process of sorting through piles of documents, Nooney's team found patterns of tipping loads marked as materials strikingly incongruous with the business involved. It was reported that a gift shop, a cafe and construction company sent loads of manure to the dump; Black Hills Power sent dozens of loads of shingles; a food vendor sent mud.
All of those materials qualified for free or reduced tipping fees, saving Fish Garbage Service money on each load. But it turns out that many of those mislabeled loads were garbage or construction waste, materials that require a standard dumping fee.
Criminal prosecutors had pursued similar angles in their cases against George and Clifford Fish, focusing on the dumping of garbage and other full-cost loads under the mislabeled alternative cover, which was supposed to be sawdust and similar materials that benefit the landfill and therefore could be dumped at no charge.
But prosecutors couldn't put things together in the criminal courts, where the case was structured differently than in the civil case and the burden of proof more difficult, according to the state’s attorney.
"The criminal and civil worlds are very different," said Pennington County State's Attorney Glenn Brenner, who watched one case end in a not-guilty verdict before dropping the charges in the other cases, which surprised many in the community.
"First, the burden is quite different in the civil world, where it's clear and convincing evidence, not beyond a reasonable doubt," he said, referring to the standard in criminal cases.
In addition, criminal prosecutors can't compel testimony and depose defendants as they can in civil cases, Brenner said.
If "alternative cover" is a painful word for Brenner to recall, it was part of the body of evidence that led to the civil settlement. During a news conference announcing the settlement Sept. 5, Nooney presented charts showing how alternative cover loads declared by Fish Garbage Service increased dramatically from 2002 to 2005 but dropped off dramatically after a landfill change that required more monitoring of those loads.
At the same time, however, Fish Garbage Service began declaring more loads of manure and other free or reduced-rate materials. That continued until 2009, when Kooiker came forward with a constituent’s concern and then helped initiate an investigation of Fish Garbage Service that would continue for four years.
Since then, the Fishes have spent about $700,000 defending themselves, with about $300,000 in criminal court and most of the rest in civil actions. The city has spent more than $300,000 on its civil action to date, and Nooney expects the city’s total to match the $375,000 the Fishes have agreed to pay to as part of the settlement in the civil suit.
The city contends that Fish Garbage Service is barely reimbursing a third of what it should have paid in tipping fees. At the same time, however, it made little sense for the city to pursue more in damages since the $375,000 settlement takes most of what is left for George and Clifford Fish, Nooney said.
"We were able to come to an assessment of what we believed their personal financial condition to be," he said. "And at that point, we said 'we've spent enough time and money on this. Let's get what we can get and be done with it.'"
Contact Kevin Woster at 394-8413 or firstname.lastname@example.org