text:
    2000 ND 144
    Christi L. COX, Plaintiff and Appellant, v. Russell R. COX, Defendant and Appellee.
    No. 990279.
    Supreme Court of North Dakota.
    July 20, 2000.

      Leslie Johnson Aldrich, Johnson Law Office, Fargo, for plaintiff and appellant.
    Monty G. Mertz, Mertz Law Office, Fargo, for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Christi L. Cox appealed from a divorce judgment awarding custody of her son to his father, Russell R. Cox. We conclude the trial court’s custody decision is not clearly erroneous, and we affirm.

I

[¶ 2] In 1996, Russell Cox and Christi Cox met in Colorado and began living together. They eventually moved to North Dakota, where their son was born June 30, 1997, in Bismarck. The couple married on August 7, 1997, in Rugby. He was 28 years old, and she was 22.

[¶ 3] Russell Cox was born in Colorado Springs, Colorado, where he was raised by an aunt and uncle. He is generally healthy, but has a hormone deficiency for which he takes medication. He also suffers from anxiety attacks and is undergoing treatment for this condition. His medical conditions do not prevent him from working. Christi Cox is a Native American and an enrolled member of the Spirit Lake Sioux Tribe at Devils Lake. She was a foster child and was adopted and raised on a farm near Leeds. She suffers from “[sjplit personality, borderline identity disorder, and severe depression.” She has taken various medications over the years and spent three years in residential psychiatric care in Fargo. She is suicidal. Because of her mental illnesses, Christi Cox is. considered permanently disabled and has received Social Security disability benefits since she was 18 years old. The child also has some health problems, including gastroesophageal reflux and intolerance for dairy products.

[¶ 4] Lack of money plagued the couple throughout their relationship. They moved often and did not live in one place long enough for Russell Cox to obtain stable employment. The couple was supported primarily by Christi Cox’s parents. They had a somewhat turbulent relationship, and after an incident in the fall of 1998 resulting in Russell Cox’s incarceration for simple assault of Christi Cox, the couple separated.

[¶ 5] Christi Cox sued Russell Cox for divorce in November 1998, seeking custody of the child. A default divorce judgment granting her custody was entered in December 1998. Russell Cox, who had moved back to Colorado Springs, successfully moved to have the default judgment vacated, and requested he be granted custody of the child. During this time, Christi Cox moved back to the farm and lived with her parents while exploring the possibility of placing her son for adoption. She eventually gave custody of her son through a power of attorney to Jerry and Bonnie Johnson, a Leeds area farm couple, and moved to Arizona to attend school to become a pharmacy technician.

[¶ 6] During the divorce trial, Christi Cox testified that if she were awarded custody, she would seek to have her son adopted by the Johnsons. She further testified it would not be in the child’s best interests to be in either her custody or Russell Cox’s custody. The trial court found the evidence of domestic violence by Russell Cox was insufficient to raise the presumption against custody by the perpetrator, and found it would be in the child’s best interests to be placed in his custody. The court awarded custody of the child to Russell Cox, and granted Christi Cox supervised visitation “[i]f she desires any visitation.”

[¶ 7] The Indian Child Welfare Act, 25 U.S.C. § 1901, et seq., does not apply to the custody dispute in this divorce action because the Act is inapplicable to “an award, in a divorce proceeding, of custody to one of the parents.” 25 U.S.C. § 1903(1). See Malaterre v. Malaterre, 293 N.W.2d 139, 145 (N.D.1980). The trial court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. Christi Cox’s appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 8] Christi Cox argues the trial court erred in awarding custody of the child to Russell Cox.

[2-^t] [¶ 9] An award of custody is treated as a finding of fact, and this Court will not disturb a custody award unless it is clearly erroneous under N.D.R.Civ.P. 52(a). Brown v. Brown, 1999 ND 199, ¶ 10, 600 N.W.2d 869. A finding of fact is clearly erroneous only it if is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made. Kjelland v. Kjelland, 2000 ND 86, ¶ 8, 609 N.W.2d 100. A reviewing court will not retry a custody case or substitute its judgment for that of the trial court, if the trial court’s findings are supported by evidence in the record. Ackerman v. Ackerman, 1999 ND 135, ¶ 8, 596 N.W.2d 332.

[¶ 10] Custody decisions . are based on the “best interests of the child” standard set forth in N.D.C.C. §§ 14-09-06.1 and 14-09-06.2(1). Reeves v. Chepulis, 1999 ND 63, ¶ 10, 591 N.W.2d 791. A district court has substantial discretion in making a custody decision, but it must consider all of the factors listed in N.D.C.C. § 14-09-06.2(l)(a)-(m). Severson v. Hansen, 529 N.W.2d 167, 168-69 (N.D.1995). A separate finding is not required for each statutory factor, but the court’s findings should be stated with sufficient specificity so we can understand the factual basis for its decision. Schumacher v. Schumacher, 1999 ND 149, ¶ 16, 598 N.W.2d 131.

A

[¶ 11] Christi Cox argues the trial court erroneously awarded custody of the child to Russell Cox, because he abandoned the child and did not provide any emotional or financial support for him.

[¶ 12] There is evidence Russell Cox took an active part in all aspects of his son’s care. Russell Cox testified Christi Cox did not want him to work because she was jealous of other women and because she could not care for the child alone, which was one of the reasons he had a difficult time finding stable employment. After his conviction for simple assault, •Russell Cox was subject to a no contact order with Christi Cox and he moved back to Colorado Springs. The parties nevertheless contacted each other by telephone on several occasions and discussed the possibility of reconciliation. Russell Cox offered to provide Christi Cox plane tickets so she and the child could move to Colorado Springs, and his uncle also offered to assist Christi Cox and the child to travel to Colorado.

[¶ 13] Russell Cox and his uncle testified about their fruitless efforts to locate the child after Russell Cox moved to Colorado. Neither Christi Cox nor her mother would divulge the child’s whereabouts to them. Russell Cox contacted social services and adoption agencies and tried to contact a tribal child protection service agent in an attempt to find the child. Christi Cox admitted she gave custody of the child to the Johnsons so they could seek termination of parental rights based on abandonment after one year had passed.

[¶ 14] Russell Cox did not pay support for the child after moving to Colorado. Although nonpayment of support is an important consideration in determining whether a parent has abandoned a child, it does not, in itself, constitute abandonment. See Hamers v. Guttormson, 2000 ND 93, ¶ 7, 610 N.W.2d 758. The trial court reasoned:

Christi complained that Russell had “abandoned” [the child], because he did not send or pay any support. However, the evidence establishes that Russell made continuous attempts to have Christi and [the child] move to Colorado, and when that did not happen, he made efforts to locate [the child] and to respond to Christi’s divorce action. Christi actively hid [the child] from Russell, in that her goal was to establish abandonment in order to pursue termination of Russell’s parental rights. Russell at no time intended to abandon [the child].

[¶ 15] We conclude the trial court’s finding Russell Cox did not abandon the child is not clearly erroneous.

B

[¶ 16] Christi Cox argues the trial court failed to consider evidence of domestic violence perpetrated by Russell Cox against her and the child.

[¶ 17] There is a rebuttable presumption against awarding custody to a parent who has perpetrated domestic violence. See Reeves, 1999 ND 63, ¶ 11, 591 N.W.2d 791. The presumption is triggered when the trial court finds “credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding .... ” N.D.C .C. § 14-09-06.2(1)©. When a trial court addresses whether evidence of domestic violence triggers the presumption, the court must make specific and detailed findings regarding the effect the allegations of domestic violence have on the presumption. See Holtz v. Holtz, 1999 ND 105, ¶ 27, 595 N.W.2d 1. Specific factual findings are not required when the evidence of domestic violence does not rise to the level of triggering the domestic violence presumption, but that evidence can still be considered by the court as one of the best-interests factors. See Schiff v. Schiff, 2000 ND 113, ¶24, 611 N.W.2d 191.

[¶ 18] The trial court addressed Christi Cox’s allegations of domestic violence:

Christi claimed that Russell engaged in domestic violence. However, she related only a few incidents, the facts of which were disputed. During one incident, Christi hit Russell in the face when they were in the car together. He got out and hit the car, saying he did not want to hit her. In another incident she claimed Russell pushed her over in a chair she was sitting in. Russell denied this incident. Although this was supposed to have occurred in her parents’ living room, both of her parents attended the entire trial and were in the Courtroom. Neither one testified in support of her allegation. She then claimed that she walked in on Russell and claims he was screaming at [the child] and was trying to smother him. Mrs. Alveshere testified only that she was there and saw Russell with “his hand over the baby’s mouth.” The incident which ended the parties’ relationship was on an evening when the parties had a fight. The police were called, and Russell was arrested. He later pleaded guilty to simple assault. The parties were never together after that time. Pursuant to NDCC Section 14-09-06.2(j), the Court finds that Christi has not proven credible evidence that domestic violence has occurred which involved serious bodily injury, use of a dangerous weapon, or a pattern of domestic violence.

[¶ 19] The trial court found most of Christi Cox’s allegations of domestic violence were not credible. The incident in which Russell Cox struck the car does not qualify as domestic violence under the facts of this case. See Brown, 1999 ND 199, ¶ 15, 600 N.W.2d 869. The altercation resulting in Russell Cox’s conviction for simple assault caused bruises to Christi Cox’s neck, knee, and leg. Russell Cox testified she received a “mark” on her neck after he grabbed her by the back of the shirt and tried to take car keys from her. There was no other evidence presented addressing the seriousness of her injury. The trial court did not view this incident as having caused Christi Cox serious bodily injury, and we cannot say the trial court incorrectly evaluated the evidence in the record.

[¶ 20] The trial court’s finding Christi Cox had not proven credible evidence of domestic violence involving serious bodily injury, use of a dangerous weapon, or a pattern of domestic violence is not clearly erroneous.

C

[¶ 21] Christi Cox argues the trial court failed to consider “exceptional circumstances” in this case that would allow the court to award custody of the child to Jerry and Bonnie Johnson. She contends the Johnsons have become the child’s “psychological parents,” thereby justifying, in the child’s best interests, an award of custody to the Johnsons. She also contends custody should be awarded to the John-sons “to prevent harm or detriment” to the child if left in the custody of his father.

[¶ 22] A court cannot award custody to a third party, rather than to a natural parent, under a “best interests of the child” test, unless it first determines that exceptional circumstances exist to trigger the best-interests analysis. In re Lukens, 1998 ND 224, ¶ 6, 587 N.W.2d 141. Absent exceptional circumstances, the natural parent is entitled to custody of the child even though the third party may be able to offer more amenities. Worden v. Worden, 434 N.W.2d 341, 342 (N.D.1989). When a psychological parent and a natural parent each seek a court-ordered award of custody, the natural parent’s paramount right to custody must prevail unless the court determines it is necessary in the best interests of the child to award custody to the psychological parent to prevent serious detriment to the welfare of the child. Goter v. Goter, 1997 ND 28, ¶ 10, 559 N.W.2d 834.

[¶ 23] Although the existence of a psychological parent relationship with a child qualifies as an “exceptional circumstance,” see Simons v. Gisvold, 519 N.W.2d 585, 587 (N.D.1994), the Johnsons are not parties to these proceedings. The Johnsons did not testify at trial. There is no expert testimony on the psychological parent issue. At the time of trial, the child had been with the Johnsons for six months, after having been secreted there by the mother. Christi Cox testified the child “bonded with [Bonnie Johnson] very well,” the Johnsons “sounded like a really good family,” the child “clings to Bonnie and Jerry,” and the child is “very stable” and “calls [the Johnsons] mommy and daddy.” This evidence is insufficient to show the Johnsons are the psychological parents of the child.

[¶ 24] The trial court found Russell Cox cared for the child since his birth and had a detailed understanding of his health problems. Russell Cox is employed as a code enforcer for a Colorado Springs suburb, earning nearly $10 per hour. The court found Russell Cox had an appropriate home to raise the child and a strong support system in his family in the Colorado Springs area. His aunt and uncle live near him and have the means, and are willing, to assist and support him in parenting the child. The court found:

Under all the applicable factors contained in NDCC Section 14-09-06.2, each and every one favors an award of custody to Russell.... Russell has the capacity and disposition to provide a stable, satisfactory environment for [the child]. He has the resources, ability, and desire to provide for all of [the child’s] emotional and physical needs. It is clearly in [the child’s] best interest to award his care, custody and control to Russell.

[¶ 25] We conclude the trial court’s award of custody to Russell Cox is not clearly erroneous.

Ill

[¶ 26] The judgment is affirmed. Because Christi Cox included materials in the appendix that were not in the record, we award double costs on appeal. See N.D.R.App.P. 13, 28, 30; Estate of Wieland, 1998 ND 130, ¶ 22 n. 3, 581 N.W.2d 140.

[¶ 27] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, JJ., concur.


source: Caselaw Access Project

author: JOHNS, Circuit Judge GILBERTSON, Justice

license: Public Domain

text:
    2000 SD 80
    In the Matter of the CONDITIONAL USE PERMIT DENIED TO Mark MEIER for Construction of an Animal Confinement Operation on Property Located in Southwest Quarter of Section 7 and the Southwest Quarter of Section 18, Township 104 North, Range 64 West, Aurora County, South Dakota.
    Nos. 20924, 20950.
    Supreme Court of South Dakota.
    Argued Feb. 16, 2000.
    Decided June 21, 2000.
    Tim R. Shattuck and Elizabeth A. Lewis of Woods, Fuller, Shultz & Smith, Sioux Falls, for appellant Mark Meier.
    Thomas H. Harmon of Tieszen Law Office, Pierre, for appellee Aurora County.
   JOHNS, Circuit Judge

[¶ 1.] Mark Meier (Meier) appeals a circuit court judgment affirming the actions of the Aurora County Board of Commissioners, sitting as the Board of Adjustment (Board), in denying his application for a conditional use permit. By notice of review the Board challenges the constitutionality of SDCL 7-8-30. We affirm in part, reverse in part and remand.

STATEMENT OF FACTS

[¶ 2.] In December 1997, Aurora County farmer Mark Meier applied to the Board for a conditional use permit allowing the construction of two hog confinement facilities housing approximately 6,600 pigs. The Board conducted a public hearing on December 30, 1997, but postponed further consideration until January 20, 1998. At the January 20 meeting, Meier and the opponents of the project were allowed to speak. After less than an hour of discussion, the Board voted unanimously to deny the conditional use permit. In its resolution of denial the Board set forth the following reasons for its action:

(1) the proposed use would excessively impact the roads of the township, involve dangers of pollution and create an undue risk of offensive odors;
(2) the manure spreading contracts did not accurately reflect the land where the manure would be spread;
(3) the South Dakota Department of Environment and Natural Resources (DENR) did not have adequate policies, rules or resources to conduct unannounced spot checks or to carry out other enforcement activities to assure that violations of environmental laws would be prevented or detected;
(4) Aurora County did not have the proper staff or expertise to monitor compliance with environmental laws; and
(6) the granting of the conditional use would not promote the public health, safety, welfare, order, convenience or community prosperity of the County.

[¶ 3.] Meier appealed the Board’s denial of a conditional use permit to circuit court pursuant to SDCL 7-8-30. The court conducted a trial de novo on December 3 and 4, 1998. Over these two days, Meier presented numerous witnesses and pieces of documentary evidence to establish his compliance with Aurora County Zoning Ordinance § 515. Ordinance 515 sets forth the performance standards for a conditional use permit for an animal feeding operation.

[¶ 4.] At the close of Meier’s case, the court granted a motion for directed verdict in favor of Aurora County. The court concluded Meier failed to establish a prima facie case as he: had not submitted a written animal waste management system plan to DENR; had not applied to DENR for coverage under the General Water Pollution Control Permit For Concentrated Swine Feeding Operations; had not obtained or applied for a storm water permit from DENR; and had not presented a nutrient management plan to the court which would assure that offensive odors and runoff would be kept to a minimum— specifically, the plan failed to address the minimization of offensive odors emanating from the hog barns.

ISSUES AND ANALYSIS
[Ujnder SDCL ch. 11-2, the South Dakota Legislature has created an entity called a county planning commission. SDCL 11-2-2. The planning commission has been authorized to prepare a comprehensive plan for the County. SDCL 11-2-11. Zoning ordinances and other controls deemed necessary are included as adjunct to and in accordance with the comprehensive plan. Id.

Coyote Flats v. Sanborn County Com’n, 1999 SD 87 ¶ 9, 596 N.W.2d 347, 350. See also SDCL 11-2-1(3) for the definition of “comprehensive plan.”

[¶ 5.] On October 1,1996, Aurora County-adopted its zoning ordinance per SDCL ch. 11-2. The real property where Meier wishes to place his hog confinement facility is zoned as an agricultural district.

The intent of Agricultural Districts (AG) is to protect agricultural lands and lands consisting of natural growth from incompatible land uses in order to preserve land best suited to agricultural uses and land in which the natural environment should be continued and to limit residential, commercial, and industrial development to those areas where they are best suited for reasons of practicality and service delivery.

Aurora County Zoning Ordinance § 501. Meier intends to conduct an animal feeding operation, which is not a permitted use under § 503 but is a conditional use under § 507. “After the provisions of this Ordinance relating to conditional uses have been fulfilled, the Planning Commission [ie., Board of Adjustment] may permit as conditional uses in Agricultural Districts (AG): 18. animal feeding operations.” Aurora County Zoning Ordinance § 507. A “conditional use” is defined in the definitions portion of the Aurora County Zoning Ordinance as:

a use that would not be appropriate, generally or without restriction, throughout the zoning district, but which, if controlled as to number, area, location or relation to the neighborhood, would promote the public health, safety, welfare, morals, order, convenience, appearance, prosperity or general welfare. Such uses may be permitted in such zoning district as conditional use is made in this Ordinance.

§ 1107B is the general section dealing with conditional uses, it provides:

The Board of Adjustment shall have the power to hear and decide, in accordance with the provisions of this ordinance, requests for conditional uses or for decisions upon other special questions upon which the Board of Adjustment is authorized by this ordinance to pass; to decide such questions as are involved in determining whether conditional uses should be granted; and to grant conditional uses with such conditions and safeguards as are appropriate under this ordinance, or to deny conditional uses when not in harmony with the purpose and intent of this ordinance. A conditional use shall not be granted by the Board unless and until:
1. A written application for a conditional use is submitted, indicating the section of this ordinance under which the conditional use is sought and stating the grounds on which it is requested; [sic][.]
2. Notice of public hearing shall be given at least fifteen (15) days in advance by publication in a newspaper of general circulation. The owner of the property for which conditional use is sought or his agent shall be notified by mail.
3. A notice shall be posted in a conspicuous place on or near the property upon which action is pending. Such notice shall be not less than seventeen (17”) in height and eleven (11”) in width with a white background and black letters not less than one and one inch (1”) in height. Such posted notice shall be so placed upon such premises that it is easily visible from the road and shall be so posted at least seven (7) days before the date of such hearing. It shall be unlawful for any person to remove, mutilate, destroy or change such posted notice prior to such hearings.
4. The public hearing shall be held. Any party may appear in person, or by agent or attorney; [sie][.]
5. The Board of Adjustment shall make a finding that it is empowered under the section of this ordinance described in the application to grant the conditional use, and that the granting of the conditional use will not adversely affect the public interest; [sic][.]
6. Before any conditional use is issued, the Board of Adjustment shall make written findings certifying compliance with the specific rules governing individual conditional uses and that satisfactory provisions and arrangement has been made concerning the following, where applicable:
a. ingress and egress to property and proposed structures thereon with particular reference to automotive and pedestrian safety and convenience, traffic flow and control, and access in case of fire or catastrophe;
b. off-street parking and loading areas where required; with particular attention to the items in (a) above and the economic, noise, glare or odor effects of the conditional use on adjoining properties and properties generally in the district;
c. refuse and service areas, with particular reference to the items in (a) and (b) above;
d. utilities, with reference to locations, availability, and compatibility;
e. screening and buffering with reference to type, dimensions, and character;
f. signs, if any and proposed exterior lighting with reference to glare, traffic safety, economic effect and compatibility and harmony with properties in the district;
g. required yards and other open spaces; and
h. general compatibility with adjacent properties and other properties in the district.

§ 515 of the zoning ordinance sets forth “performance standards” for commercial feedlots and animal feeding operations and states:

a. Animal Feeding Operations shall submit animal waste management system plans and specifications for review and approval prior to construction and a Notice of Completion for a Certificate of Compliance, after construction, to the South Dakota Department of Environment and Natural Resources.
b. Prior to construction, such facilities shall obtain a storm water permit for construction activities from the South Dakota Department of Environment and Natural Resources. The storm water pollution prevention plan required by the permit must be developed and implemented upon the start of construction.
c. Animal waste facilities shall be no less that six hundred and sixty (660) feet from adjoining property lines and domestic ground and surface water supplies.
d. Applicants must present a nutrient management plan which will assure offensive odors and runoff will be kept to a minimum. Examples of such management shall include at least:
1. Proposed maintenance of holding ponds.
2. Nutrient transportation equipment free of leaks or spillage hazards.
3. Land application process and/or methods.
4. Legal description and map of area to be utilized for nutrient application.
e. Animal waste facilities shall be located no closer than two (2) miles from any incorporated municipality or rural residential district.
f. Animal waste facilitates shall be located no closer than one (1) mile from any residential dwelling, one dwelling unit is allowed on the facility site. The owner of a residential dwelling may request the Planning Commission [ie., Board of Adjustment] to review the facility and the Commission [ie., Board] may, by variance, waive or decrease the required separation distance. The waiver must then be recorded with the County Register of Deeds in order that any future owners can be informed.
g. Animal waste shall be transported no further than five (5) miles from the point of origination for land application.

Unfortunately the Aurora County Zoning Ordinance does not define the term “performance standards” as used in § 515. This has caused some of the confusion in this ease as the trial court determined that Meier would be entitled to a conditional use permit if he satisfied all of the conditions of § 515. Although this ruling should have excluded many of the reasons the Board gave for denying Meier’s application, the court also denied Meier’s motions in limine to exclude from consideration any factors not found in § 515.

[¶ 6.] Meier argues that the trial court erroneously denied his motions in limine. He contends the only relevant considerations for the grant or denial of his permit are those factors set forth in Aurora County Zoning Ordinance § 515. He also contends he established a prima facie case and, therefore, the trial court erroneously granted the directed verdict denying his conditional use permit application. We hold: that the Board should determine the permit request in light of all relevant factors provided for under the ordinance and not just the performance factors found in § 515; that the trial court correctly denied many, but not all, of Meier’s motions in limine; and that the trial court incorrectly granted a directed verdict.

[¶ 7.] Meier’s appeal to the circuit court was filed pursuant to SDCL 7-8-30 which provides in part that “[a]ll appeals thus taken to the circuit court shall be docketed as other causes pending therein and the same shall be heard and determined de novo.” The trial court opined that a trial de novo, in its strict sense, violated the constitutional doctrine of separation of powers as it would require him to substitute his judgment for that of the Aurora County Commissioners. The Board, by notice of review, challenges the constitutionality of SDCL 7-8-30. The Board contends that unless this Court interprets SDCL 7-8-30 in the same sense that we have interpreted SDCL 13-46-6 regarding appeals from school boards, SDCL 7-8-30 is unconstitutional. We find that it is not necessary for us to reach this issue since the trial court determined the legality of the Board’s decision and did not reach any conclusion based on the wisdom of the decision. See Coyote Flats, supra (a case involving a special use permit application for a hog confinement facility); Schrank v. Pennington County Bd., 1998 SD 108, 584 N.W.2d 680.

[¶ 8.] Did the trial court err when it limited its consideration to the performance standards of § 515?

[¶ 9.] The trial court did not have the benefit of our decision in Coyote Flats at the time it tried this matter. There we held that factors such as the location of neighbors to the proposed hog confinement facility, the effect of the operation on roads in comparison to what tax revenue the operation would generate, the potential devaluation of surrounding real estate, the presence of noxious odors and the potential for water pollution were all relevant and reasonable factors for the commission to consider. See Coyote Flats, 1999 SD 87 at ¶ 28, 596 N.W.2d at 353.

[¶ 10.] The question of whether the decision of the Board and the trial court is limited to consideration of the factors in § 515, is one of statutory interpretation. It involves consideration of § 515 as well as §§ 507 and 1107 of the Aurora County Zoning Ordinance and the definition of “conditional use” found therein.

“The purpose of rules regarding the construction of statutes is to discover the true intention of the law, and said intention is to be ascertained by the court primarily from the language expressed in the statute. In applying legislative enactments, we must accept them as written. The legislative intent is determined from what the legislature said, rather than from what we or others think it should have said.
One of the primary rules of statutory ... construction is to give words and phrases their plain meaning and effect. This court assumes that statutes mean what they say and that legislators have said what they meant. When the language of a statute is clear, certain and unambiguous, there is no occasion for construction, and the court’s only function is declare the meaning of the statute as clearly expressed in the statute.”

South Dakota SIF v. CRE, 1999 SD 2, ¶ 17, 589 N.W.2d 206, 209 (quoting Delano v. Petteys, 520 N.W.2d 606, 608 (S.D.1994)).

[¶ 11.] We hold that § 515 does not limit the Board’s discretion for the following reasons. First, the definition of “conditional use” found in the definitions portion of the Aurora County Zoning Ordinance and § 1107B of the ordinance setting the conditions for granting a conditional use establish that the factors to be considered in the decision to grant a conditional use are broader than those set forth in § 515 alone. Second, while § 515 specifically addresses standards for animal feeding operations, it does not limit the decision to grant or deny conditional use to consideration of those standards. Third, § 507 clearly states that only “[a]fter the provisions of this Ordinance relating to conditional uses have been fulfilled, the Planning Commission [i.e., Board of Adjustment] may permit as conditional uses in Agricultural Districts ... animal feeding operations.” (emphasis added).

[¶ 12.] Section 515 establishes specific standards that one must meet either before the issuance of a permit or after, but it does not preclude other considerations. We interpret factors (c) through (f) of § 515 as being conditions that must be met prior to issuance of the permit and factors (a) and (b) as ones which must be met prior to the operation of an animal feeding operation. Our conclusions are supported by the very concept of a conditional use which is “a land use which because of its unique nature is compatible with the permitted land uses in a given zoning district only upon a determination that the external effects of the use in relation to the existing and planned uses of adjoining property and the neighborhood can be mitigated through imposition of standards and conditions.” Alan C. Weinstein, Anderson’s American Law of Zoning § 34.23, at 572-573 (4th ed. 1997). (emphasis added).

[¶ 13.] Did the trial court err when it denied Meier’s motions in limine?

[¶ 14.] Meier filed six motions in limine prior to trial. In them he moved to exclude all evidence:

not related to whether» his proposed hog confinement operation complies or would comply with the performance standards set forth in Aurora County Zoning Ordinance § 515; that his proposed operation would be an undue burden upon the taxpayers of Firesteel Township; that the proposed operation will meet the state permit requirements imposed and enforced by the DENR; that the proposed operation would create an undue risk of offensive odors in the neighborhood of the proposed operation other than evidence related to whether Meier’s proposed operation will meet the setback requirements of § 515; that DENR does not have adequate policies, rules, and resources to conduct unannounced spot checks of animal feeding operations or to conduct other enforcement activities in order to insure that violations of environmental laws and regulations are promptly detected and either punished or prevented; and that Aurora County does not have the professional staff or expertise or other resources necessary to enforce the .State’s environmental laws and regulations.

Meier argues that none of these considerations are relevant because they are not found in § 515. As we have already held, § 515 is not exclusive and, therefore, we reject Meier’s argument.

[¶ 15.] We do agree with Meier, however, that lack of enforcement of environmental regulations by the State of South Dakota or the county is not a relevant consideration as the ordinances of Aurora County do specifically allow for animal feeding operations. If the statutes of this state and the ordinances of a county are not being enforced, then it is incumbent on each of us to see that they are. It is fundamentally unfair to deny a person a legal use of their property because a government is not enforcing its own laws. In this connection, we also note that the effect of an operation on the roads may not be a reason to deny a conditional use if the deleterious effects can reasonably be mitigated by conditions attached to the permit.

[¶ 16.] The ultimate issue is whether a conditional use should be permitted. As stated in § 507 a conditional use is one that is generally not appropriate in the zoning district. The ordinance goes on to state that such a use should be permitted if it will “promote the public health, safety, welfare, morals, order, convenience, appearance, prosperity or general welfare.” Meier has the burden of showing that his proposed use promotes the public good. To do this, his initial burden of production before the Board is to show that he has and/or will meet the performance standards and the other objective criteria established in the ordinance. Once he makes such a showing it can be presumed that his proposed use is consistent with the public good and the burden of production switches to the opponents to offer evidence that the granting of the conditional use will adversely affect the public interest. § 1107B5. The burden of persuasion, however, lies at all times with Meier.

[¶ 17.] Did the trial court properly grant a directed verdict?

[¶ 18.] The trial court granted the Board a directed verdict at the close Meier’s case-in-chief finding that Meier failed to make a showing that his nutrient management plan would assure that offensive odors would be kept to a minimum as required by § 515(d). Specifically, it found that Meier’s nutrient management plan failed to address “the minimization of offensive odors emanating from animal waste contained in the hog barns.”

[¶ 19.] When a trial court is faced with a motion for a directed verdict under SDCL 15-6-50(a) it “must determine whether there is any substantial evidence to sustain the action.” Veeder v. Kennedy, 1999 SD 23, ¶ 25, 589 N.W.2d 610, 617 (quoting Border States Paving, Inc. v. State, Department of Transportation, 1998 SD 21, ¶ 10, 574 N.W.2d 898, 901). “The evidence must be accepted which is most favorable to the nonmoving party and the trial court must indulge all legitimate inferences therefrom in his favor.” Id. Further, the trial court, “is not free to weigh the evidence or gauge the credibility of the witnesses.” Haberer v. Rice, 511 N.W.2d 279, 284 (S.D.1994). “Such motion necessarily admits the truth of plaintiffs evidence and every inference of fact that may be legitimately drawn therefrom.” North west Realty Company v. Perez, 81 S.D. 500, 504,137 N.W.2d 345, 347 (1965).

a directed verdict under SDCL 15-6-50(a) it “must determine whether there is any substantial evidence to sustain the action.” Veeder v. Kennedy, 1999 SD 23, ¶ 25, 589 N.W.2d 610, 617 (quoting Border States Paving, Inc. v. State, Department of Transportation, 1998 SD 21, ¶ 10, 574 N.W.2d 898, 901). “The evidence must be accepted which is most favorable to the nonmoving party and the trial court must indulge all legitimate inferences therefrom in his favor.” Id. Further, the trial court, “is not free to weigh the evidence or gauge the credibility of the witnesses.” Haberer v. Rice, 511 N.W.2d 279, 284 (S.D.1994). “Such motion necessarily admits the truth of plaintiffs evidence and every inference of fact that may be legitimately drawn therefrom.” North-

CONCLUSION

[¶ 21.] Recently, in Coyote Flats, supra, and Schrank, supra, we considered the scope of review to be used by a circuit court when considering an appeal under SDCL 7-8-30.

SDCL 7-8-30 provides that all appeals taken to the circuit court from a decision by the county board “shall be heard and determined de novo.” We held in Sioux Valley Hosp. v. Jones County, 309 N.W.2d 835, 837 (S.D.1981), that this standard means “the circuit court should determine anew the question ... independent of the county commissioner’s decision.” We have also held in regards to SDCL 7-8-30 that “the trial court should determine the issues before it on áppeal as if they had been brought originally. The court must review the evidence, make findings of fact and conclusions of law, and render judgment independent of the agency proceedings.” Keogan v. Bergh, 348 N.W.2d 462, 464 (S.D.1984).

Schrank, 1998 SD 108 at ¶ 15, 584 N.W.2d at 682.

[¶ 22.] While we said the trial court should determine the question anew, we did not mean the court should sit as a “one man Board of Adjustment” and determine if it would issue a conditional use permit in the first instance. As we also said in Coyote Flats, 1999 SD 87 at ¶42, 596 N.W.2d at 356-57, “[t]his Court [ie., the Supreme Court] is not warranted in directing the manner in which the Commission should exercise its legal discretion.” The trial court is instructed to determine anew all matters of fact without ascribing any presumption of correctness to the Board’s findings on the evidence. Once the trial court finds the facts, it is to determine if the actions of the Board were arbitrary or capricious, ie., whether the actions of the Board were “based on personal, selfish, or fraudulent motives, or on false information, [or] ... characterized by a lack of relevant and competent evidence to support the action taken.” Coyote Flats, 1999 SD 87 at ¶ 14, 596 N.W.2d at 351. If the court finds the decision was arbitrary or capricious, it should reverse the decision and remand to the Board for further proceedings. Otherwise, it must affirm.

[¶ 23.] Affirmed in part, reversed in part and remanded.

[¶ 24.] MILLER, Chief Justice, and AMUNDSON and KONENKAMP, Justices, concur.

[¶ 25.] GILBERTSON, Justice, concurs in part and dissents in part.

[¶ 26.] JOHNS, Circuit Judge for SABERS, Justice, disqualified.

GILBERTSON, Justice

(concurring in part, dissenting in part).

[¶ 27.] I would affirm the Board’s decision to deny Meier the conditional use permit and thus affirm the trial court. I would not remand for further proceedings before the Board as I see no reason to march the troops up the hill to again march them down. Proeedurally Meier was allowed to present his evidence in full as to why the circuit court should reverse the Board. Meier failed in his attempt and the trial court granted a directed verdict against him at the close of his case. To now remand for the remainder of the trial does no more than require the County to put on its evidence in a case that it has already won on the merits.

[¶ 28.] As to the legal issue, it is clear the granting of a conditional use permit is discretionary with the Aurora County Board of Commissioners as defined in the Aurora County Zoning Ordinances: “Such uses may be permitted in such zoning districts as conditional use is made in this Ordinance.” (emphasis added). Given that the Board has this discretionary authority, “[t]his Court is not warranted in directing the manner in which the Commission should exercise its legal discretion.” Coyote Flats v. Sanborn County Comm’n, 1999 SD 87, ¶ 42, 596 N.W.2d 347, 356-57 (citing Breckweg v. Knochenmus, 81 S.D. 244, 251, 133 N.W.2d 860, 864 (1965)). The only question the court must decide is whether the Board acted arbitrarily or capriciously. See Schrank v. Pennington County Bd. of Comm’n, 1998 SD 108, ¶¶ 16-19, 584 N.W.2d 680, 682-83 (a reviewing court must determine the legality, not the propriety, of a board’s decision). If it did not, it must be affirmed.

[¶ 29.] “A decision is arbitrary and capricious when it is ‘not governed by any fixed rules or standard.’ ” Smith v. Canton Sch. Dist. No. 41-1, 1999 SD 111, ¶9, 599 N.W.2d 637, 639-40 (quoting Black’s Law Dictionary 104 (6th ed. 1990)). The fixed rules that guide the Board’s decision here are provided by the Aurora County Zoning Ordinances, particularly § 515 governing performance standards for commercial feedlot operations and § 1107B governing conditional uses generally. The Board determined Meier’s plan to construct two hog confinement facilities did not comply with the standards specifically addressing feedlot operations in Aurora County and set forth its reasoning in its denial of Meier’s conditional use permit. There is no showing that this decision was made arbitrarily or capriciously. There is no reason to remand this action back to the Board that denied the permit in the first place to consider additional, broader elements when it denied the permit based on specific ones.

[¶ 30.] I agree with the majority that the constitutional issue need not be reached. “Principles of judicial restraint dictate that when an issue effectively disposes of the case, other issues that are presented should not be reached.” Poppen v. Walker, 520 N.W.2d 238, 248 (S.D.1994). “This principle is especially applicable when constitutional issues are involved.” Id. (citing State v. Devericks, 77 S.D. 509, 94 N.W.2d 348 (1959) (citing Friese v. Gulbrandson, 69 S.D. 179, 8 N.W.2d 438 (1943))).

      . Approximately eighty people attended the Board of Adjustment meeting.

      . An “animal feeding operation” is defined under the definitions portion of the Aurora County Zoning Ordinance as "a facility where more than eight hundred (800) animal units are confined at an operation.”

      . Section 1107C of the Aurora County Zoning Ordinance provides that the Board of Adjustment, not the Planning Commission, grants variances.

      . We presume that since the county commission allowed for animal feeding operations in agricultural districts when it passed the ordinance, the commission considered such an enterprise to be in the public good when it is limited in number, area, place and by other appropriale limitations and conditions. See East Manchester Tp. v. Dallmeyer, 147 Pa. Cmwlth. 671, 609 A.2d 604 (1992); Schatz v. New Britain Tp., 141 Pa.Cmwlth. 525, 596 A.2d 294 (1991); Appeal of Baird, 113 Pa. Cmwlth. 637, 537 A.2d 976 (1988).


author: AMUNDSON, Justice. SABERS, Justice

text:
    2000 SD 82
    Mohammed BELHASSEN, Claimant and Appellant, v. JOHN MORRELL & COMPANY, Employer, Self-Insurer and Appellee.
    Nos. 21253, 21258.
    Supreme Court of South Dakota.
    Considered on Briefs April 24, 2000.
    Decided June 21, 2000.

      Scott G. Hoy of Scott G. Hoy Law Office, Sioux Falls, for claimant and appellant.
    Michael S. McKnight, Lisa Hansen Mar-so of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for employer, self insurer and appellee.
   AMUNDSON, Justice.

[¶ 1.] Mohammed Belhassen (Belhassen) appeals the Department of Labor’s (Department) denial of odd-lot benefits and Cozine benefits. We affirm.

FACTS

[¶ 2.] Belhassen began working for John Morrell & Company of Sioux Falls, South Dakota in April 1992. In October 1993, Belhassen suffered a work-related injury to his back in the course of his employment with John Morrell. As a result of this injury, Belhassen was ordered off work from October 7, 1993 to March 6, 1995. On May 26, 1994, Dr. Asfora performed arthroscopic surgery on Belhas-sen’s back. Despite the surgery, Belhas-sen continued to have problems with his back and was referred to Dr. Charles Burton.

[¶ 3.] Dr. Burton, a neurosurgeon and Senior Medical Director for the Institute of Low Back and Neck Care in Minneapolis, Minnesota, examined Belhassen on October 5, 1994. Burton diagnosed Bel-hassen with a two-level degenerative disease and recommended further surgery on L3^1 Level of Belhassen’s back.

[¶ 4.] On December 7, 1994, John Mor-rell sent Belhassen to Dr. David Hover-sten for an Independent Medical Evaluation. Hoversten found that Belhassen was uncooperative during the examination and was exaggerating his pain symptoms. Hoversten concluded that Belhassen was “a poor candidate for surgery and that it would be ‘likely to result in several further surgeries with a total disability after he had been operated on enough times.’” John Morrell then sent Belhassen to Dr. Frederick Entwistle on May 25, 1995. Entwistle recommended Belhassen undergo additional surgery, but referred Belhas-sen to Dr. Joseph Cass for a second opinion. On June 26, 1995, Dr. Cass examined Belhassen and recommended additional surgery was necessary. Belhassen underwent the surgery on July 15,1995.

[¶ 5.] Belhassen was released by Dr. Cass to return to work on October 23, 1995, with instructions that Belhassen work only four hours a day and perform only light duty. Within a month, Belhas-sen was reporting the same symptoms in his back that he had complained of prior to the July surgery. At a follow-up appointment with Dr. Cass, Cass was unable to determine the source of Belhassen’s symptoms, but released him back to work with the same light duty work restrictions.

[¶ 6.] On March 27, 1996, after further concerns had been raised about Belhas-sen’s ability to perform his assigned work, Dr. Cass ordered a functional capacity assessment and re-examined Belhassen to formulate an impairment rating. Dr. Cass concluded that Belhassen had a ten percent impairment of the whole person under the AMA Guide to Impairment (Fourth Edition). Dr. Hoversten performed two examinations and found that under the AMA Guide (Fourth Edition) Belhassen had a fifteen percent impairment of the whole person, but under the AMA Guide (Third Edition) Belhassen had a ten percent impairment of the whole person.

. [¶ 7.] On June 7, 1996, John Morrell sent Dr. Cass a letter asking him to review a videotape depicting the retrim blade meat job and determine whether it would be appropriate for Belhassen. Registered nurse Linda Pudenz reviewed the videotape and subsequently spoke with Dr. Cass about her observations. Dr. Cass ultimately approved the retrim blade meat job for Belhassen, based upon Pudenz’s observations, but provided that weight restrictions be maintained and Belhassen be allowed to sit or stand at his convenience.

[¶ 8.] While Belhassen had initially been released back to work and required to work only four hours per day, after a brief period, Belhassen ultimately was allowed to return to work full-time, but would alternate between two job functions on an hourly basis: standing and trimming meat for one hour and sitting and assembling boxes for another hour. On August 1, 1996, Belhassen was informed that he would be expected to work the retrim blade meat position for an entire eight-hour shift and not just every other hour. Belhassen claims that he attempted to explain to his supervisor that an eight-hour shift on the retrim blade position would violate his medical restrictions from Dr. Cass. Belhassen, therefore, refused to perform the eight-hour shift. After subsequent meetings between Belhassen, Bel-hassen’s union representative, an interpreter, two of Belhassen’s supervisors and John Morrell’s personnel director, Belhas-sen still refused to perform the job and he was discharged for refusing the assignment.

[¶ 9.] After his termination, Belhassen attempted to find work by registering with Job Service. Belhassen filled out one application with Carlisle Plastics, but was not hired. Further, Belhassen never contacted or was contacted by Job Service regarding any potential job openings. Bel-hassen did not apply for any other jobs.

[¶ 10.] Belhassen brought a workers’ compensation action before Department to determine whether he was entitled to “odd lot benefits” and “Cozine benefits.” On December 16, 1998, the Administrative Law Judge (ALJ) for the Department rejected Belhassen’s expert, Rick Ostran-der’s opinion and denied Belhassen’s request for odd lot and Cozine benefits. Belhassen appealed the decision to the circuit court which affirmed the denial of benefits to Belhassen. Belhassen subsequently filed a Motion for Reconsideration and a Motion for Order Allowing for Additional Evidence, but the motions were both denied. Belhassen appeals, raising the following issues:

1. Whether Belhassen is entitled to odd-lot benefits.
2. Whether Belhassen is entitled to Cozine benefits.

John Morrell filed a Notice of Review, raising the following issues:

3. Whether Cozine benefits should be denied due to Belhassen’s failure to look for work.
4. Whether Cozine benefits should be denied due to Belhassen’s ability to return to his usual and customary line of employment.

STANDARD OF REVIEW

[¶ 11.] Our standard of review in workers’ compensation cases is well settled. We have often stated that “ ‘[u]nder SDCL 1-26-37, when the issue is a question of fact, then the clearly erroneous standard is applied to the agency’s findings; however, when the issue is a question of law, the actions of the agency are fully reviewable.’ ” Brady Mem’l Home v. Hantke, 1999 SD 77, ¶ 8, 597 N.W.2d 677, 679-80 (quoting Wagaman v. Sioux Falls Constr., 1998 SD 27, ¶ 12, 576 N.W.2d 237, 240 (citing Loewen v. Hyman Freightways, Inc., 1997 SD 2, ¶ 6, 557 N.W.2d 764, 766 (citations omitted))). Under our review, “we are required to give ‘great weight to the findings and inferences made by Department on factual questions.’ ” Id. (quoting Wagaman, 1998 SD 27, ¶ 12, 576 N.W.2d at 240 (citing Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228 (citations omitted))). Further, “ ‘[i]f after careful review of the entire record we are definitely and firmly convinced a mistake has been committed, only then will we reverse.’ ” Id. (quoting Sopko, 1998 SD 8, ¶ 6, 575 N.W.2d at 228 (citations omitted)).

DECISION

[¶ 12.] 1. Whether Belhassen is entitled to odd-lot benefits.

[¶ 13.] We have often stated that the determination of whether a claimant is entitled to permanent total disability benefits, otherwise known as odd-lot disability benefits, is determined as follows:

[A] person is totally disabled if his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in insubstantial income.
Under this doctrine, an employee first bears the burden to show total disability. If it is “obvious” an employee falls within the “odd-lot” category, the employer must then prove positions in the community are available for persons with the employee’s limitations. A claimant may show “obvious unemployability” by: (1) showing that his physical condition, coupled with his education, training and age make it obvious that he is in the odd-lot total disability category, or (2) persuading the trier of fact that he is in fact in the kind of continuous, severe and debilitating pain which he claims. Inversely, if the employee is not obviously unemployable, the burden remains with the employee to demonstrate the unavailability of suitable employment, after reasonable albeit unsuccessful, efforts to find work.

Kurtz v. SCI, 1998 SD 37, ¶ 14, 576 N.W.2d 878, 883-84 (quoting Zoss v. United Bldg. Ctrs., Inc., 1997 SD 93, ¶ 16, 566 N.W.2d 840, 845 (citations & internal quotations omitted)). To establish his entitlement to odd-lot benefits, Belhassen must either show that he is “obviously unemployable” or show that suitable employment is unavailable based upon Belhas-sen’s reasonable, yet unsuccessful, efforts to find work. See Petersen v. Hinky Dinky, 515 N.W.2d 226 (S.D.1994). We will discuss each separately.

Obvious Unemployability

[¶ 14.] We have previously held,

[a] claimant can establish obvious un-employability by showing either that his physical condition along with his education and training make it obvious that he is in the odd-lot total disability category, or by convincing the trier of fact that he suffers the kind of continuous, severe, and debilitating pain which he claims.

Wagaman, 1998 SD 27, ¶ 22, 576 N.W.2d at 242. The ALJ found that “[t]he evidence presented at the hearing [did] not establish that Belhassen is obviously unemployable.” The ALJ noted that Ostran-der, who stated that Belhassen was obviously unemployable, “was not aware of Belhassen’s history as a truck driver and did not consider the employment possibilities occasioned by that experience.” The ALJ further held that because Belhassen was “able to perform full-time work with John Morrell,” that was proof that he was not “obviously unemployable.” Finally, ALJ noted,

[wjhile I believe Belhassen’s general assertion of pain, I do not believe all of his reporting of pain is accurate. I make this assessment based on the medical records and my own observations of [Belhassen] during the hearing. Simply put, I do not believe Belhassen’s assertion that he is in such severe and debilitating pain that he is permanently, totally disabled. His ability to perform the boxing and blade retrim work at John Morrell belies any claim of such debilitating pain.

[¶ 15.] Belhassen contends that he is “obviously unemployable” for the following reasons: (1) he cannot read, write, speak or understand English; (2) he has a light duty work restriction with limited twisting and bending; (3) Belhassen’s treating physician testified that Belhassen needs the option of sitting or standing when needed; (4) Belhassen has a standing limitation of thirty minutes and a sitting limitation of sixty minutes; (5) Belhassen’s prior work experience consists of office cleaner and a van driver, both of which Belhassen argues are not transferable skills; and (6) Belhas-sen has only a fifth grade education. Bel-hassen also argues that his vocational expert’s Ostrander’s testimony supports his argument that he is obviously unemployable. Ostrander had stated in his testimony,

I think it is an obvious situation. I don’t think there is anything that can reasonably be done to help him be employable. That is, I don’t think there is any type of rehabilitation that will succeed. What we have is a 51-year old man who does not speak English, who is poorly educated even in his native third world country and has no English skills.

[¶ 16.] John Morrell argues that Belhas-sen was not “obviously unemployable” because there was no reason Belhassen could not work or look for work. In support of this argument, John Morrell emphasizes that Dr. Cass and Dr. Hoversten both had approved the retrim blade meat job at John Morrell for Belhassen. In addition, Dr. Cass testified that there was no medical reason that Belhassen could not be working or looking for work. Finally, John Morrell contends that the Department was correct in rejecting Ostrander’s expert opinions because he was not aware of the significant facts. Ostrander, who had evaluated Belhassen’s work skills and employability, noted in his report that Bel-hassen’s only prior work experience in Libya was as an office cleaner. Ostrander had testified that he had no knowledge that Belhassen was in the military or that he had driven a van in the Libyan army.

[¶ 17.] It is our well-settled rule that “ ‘[d]ue regard shall be given to the opportunity of the agency to judge the credibility of the witness.’ ” Kurtz, 1998 SD 37, ¶ 12, 576 N.W.2d at 883 (quoting Bonnett v. Custer Lumber Corp., 528 N.W.2d 393, 396 (S.D.1995) (citation omitted)). We have often stated that “[t]he value of the opinion of an expert witness is no better than the facts upon which it is based.... The credibility of witnesses and the evidentiary value of their testimony falls solely within the province of the [fact finder].” Bridge v. Karl’s, Inc., 538 N.W.2d 521, 525 (S.D.1995). “ ‘The trier of fact is free to accept all of, part of, or none of, an expert’s opinion.’ ” Kester v. Colonial Manor of Custer, 1997 SD 127, ¶ 24, 571 N.W.2d 376, 380 (quoting Hanson v. Penrod Constr. Co., 425 N.W.2d 396, 398 (S.D.1988) (citations omitted)). Further, Department “ ‘is not required to accept the testimony of the claimant and is free to choose between conflicting testimony.’ ” Wagaman, 1998 SD 27, ¶ 29, 576 N.W.2d at 242-43 (quoting Petersen, 515 N.W.2d at 235 (citation <& internal quotation omitted)).

[¶ 18.] In the present case, the ALJ had the opportunity to hear the testimony from Ostrander and Belhassen and concluded that their testimony was not credible. After reviewing the record and the ALJ’s decision, we find no mistake in the ALJ’s decision. Belhassen continually emphasized his lack of education and inability to communicate in the English language as support for his “obvious unemployability.” The trier of fact did not accept claimant’s and expert’s testimony as credible, as is within its discretion. Belhassen has failed to convince this Court .that a mistake was made.

Inability to Locate Employment

[¶ 19.] Belhassen’s alternative argument for recovery is that he has been unable to locate employment and should be entitled to recover odd-lot benefits. Department rejected Belhassen’s argument and concluded that Belhassen had “not established unavailability of suitable employment by showing that he has made ‘reasonable efforts’ to find work.” Department noted that Belhassen completed and submitted an application to Carlisle Plastics, but “[t]here is no evidence that Carlisle Plastics requested any further information or testing from Belhassen.” Further, Department noted that there was “no evidence in the record that Belhassen applied for any other employment.”

[¶ 20.] A review of the record supports the ALJ’s conclusion that Belhassen’s efforts to find suitable employment were not “reasonable.” We have previously stated that a claimant must make “reasonable” efforts. See Wagaman, 1998 SD 27, ¶ 35, 576 N.W.2d at 243. Despite his initial registration with Job Service, no evidence exists that Belhassen made any further contacts with Job Service or applied for any other employment. Further, the evidence shows that after six months with Job Service, Belhassen was placed on the inactive status. Belhassen failed to make any further efforts to find employment during this time whether it was through Job Service or by his own efforts. It is clear that Belhassen’s efforts were far from “reasonable.” Based upon our review of the record, Belhassen has failed to show that the ALJ erred in not awarding him permanent total disability benefits. ■

[¶ 21.] 2. Whether Belhassen is entitled to Cozine benefits.

[¶ 22.] “Cozine benefits are those which are paid to a claimant for the loss of a part of the body or its loss of use.” Kurtenbach v. Frito-Lay, 1997 SD 66, ¶ 29, 563 N.W.2d 869, 876 (citing Cozine v. Midwest Coast Transp., Inc., 454 N.W.2d 548, 551-52 (S.D.1990); SDCL 62-4-6). In Cozine, we held that a medical impairment rating will not always measure loss of use and “[although the medical impairment rating given by a doctor is an important factor, the extent of loss of use does not necessarily equal the extent of medical impairment.” 454 N.W.2d at 552. The South Dakota Legislature thereafter enacted SDCL 62-1-1(8), which provided at the time of Belhassen’s injury:

“Permanent partial disability,” a loss of use of the body or member of the body which is partial and permanent and shall be determined by a medical impairment rating, expressed as a percentage to the affected body part, using the guide to evaluation of permanent impairment established by the American medical association, third edition, November 1988. In addition to the medical impairment rating as set forth above, the employee is entitled to receive up to an additional fifty percent of the affected body part if the medical impairment rating given does not adequately reflect his loss of use as measured by the ability of the employee to perform work in the open labor market and to earn comparable wages taking into consideration the employee’s education, training, experience and capacity for rehabilitation. There is a presumption that the employee has no loss of use beyond the medical impairment rating if the employee is able to return to Ms usual and customary line of employment!.]

SDCL 62-1-1(8) (1993). In determining whether Belhassen is entitled to Cozine benefits, “[i]t is for Department to determine ‘if, and to what extent, a claimant has suffered the loss of use of a part of the body.’ [citation omitted]. Factors such as a medical impairment rating, testimony of vocational experts, and other testimony must be considered to determine loss of use.” Wagaman, 1998 SD 27, ¶ 41, 576 N.W.2d at 244 (citing Tischler v. UPS, 1996 SD 98, ¶ 49, 552 N.W.2d 597, 605) (emphasis added).

[¶ 23.] In the present case, Belhassen presented expert testimony only from Os-trander. The ALJ heard Ostrander’s testimony and found it lacked credibility because it “was based on erroneous information regarding Belhassen’s prior work history.” The ALJ concluded,'

[a]s a matter of simple logic it seems that Belhassen has suffered a loss beyond his impairment rating. For example, a person who suffers from the same physical limitations as Belhassen, but has basic English skills, would be more employable than Belhassen. Recognizing the existence of a loss beyond the impairment rating is not enough. A specific percentage of loss must be determined. MaMng such a determination requires a valid and reliable expert assessment. After carefully considering all the evidence, I must reject Mr. Os-trander’s opinion. I cannot accept his casual, almost flippant, disregard of [Belhassen’s] 17 years of experience as a driver in Libya. After acknowledging that he did not know for certain what employment Belhassen had held in Libya, Ostrander opined that Belhassen had no transferable skills when he came to the United States. I cannot accept that opinion, based as it is on the admitted lack of information regarding [Belhas-sen’s] employment history in Libya. The oft-quoted maxim that an expert’s opinion is entitled to no more weight than the facts upon which it is based is certainly well applied to this situation.

Finally, the ALJ opined that Belhassen failed to meet his burden of proof in establishing any loss of use beyond his impairment rating.

[¶ 24.] John Morrell argues that it was not clearly erroneous for ALJ to reject Ostrander’s expert testimony. In support of its argument, John Morrell cites Loewen v. Hyman Freightways, Inc., 1997 SD 2, 557 N.W.2d 764. Belhassen once again argues that Department’s decision to reject Ostrander’s opinion was clearly erroneous. Belhassen contends that it is “common sense” that “the ability to drive in Libya does not transfer to the ability to drive for employment in the local job market.” Belhassen also argues that based on his inability to read, speak or understand English, combined with his other physical and education limitations, would make obtaining a commercial driver’s license difficult. Finally, Belhassen claims that “[seventeen years of experience at the low end of the semi-skilled job range does not miraculously transform that semi-skilled job into a transferable job skill.”

[¶ 25.] In Loewen, we noted:

[T]he Department is in the best position to assess the credibility of the witness and the weight to be accorded their testimony, and we give due regard to its opportunity to observe the witnesses and the evidence first hand. [Petersen, 515 N.W.2d at 235]; Wendel v. Domestic Seed & Supply, 446 N.W.2d 265, 271 (S.D.1989). We will not substitute our judgment for the agency’s on an issue of credibility unless we are “left with a definite and firm conviction that a mistake has been made.” Lien v. Miracle Span Corp., 456 N.W.2d 563, 565 (S.D.1990).

1997 SD 2, ¶ 11, 557 N.W.2d at 767. Os-trander admitted that he did not know if or how long Belhassen was a driver in the Libyan military or how long he had done cleaning work in Libya. It was within the ALJ’s discretion to assess the credibility of Ostrander and determine whether to accept it. The ALJ did not accept it because it was “entitled to no more weight than the facts upon which it is based.” Belhassen had no credible expert testimony to support his claims; therefore, ALJ did not believe that Belhassen’s claims entitled him to Cozine benefits. Reviewing the record, we cannot say that a mistake was made by the ALJ.

[¶ 26.] Based upon our disposition of the first two issues, we need not discuss John Morrell’s issues.

[¶ 27.] We affirm.

[¶ 28.] MILLER, Chief Justice, and KONENKAMP and GILBERTSON, Justices, concur.

[¶ 29.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 30.] Thé majority opinion affirms the denial of permanent total disability and Cozine benefits. I respectfully disagree and would reverse because Belhassen established a prima facie case of permanent total disability. Therefore, this case should be remanded to determine whether Morrell met its burden of showing that suitable employment is available within Sioux Falls that will accommodate all of Belhassen’s limitations. Accordingly, the issue of whether Belhassen is entitled to Cozine benefits does not need to be reached.

[¶ 31.] Belhassen has satisfied his burden of proof that he is obviously unemployable.

[¶ 32.] A claimant is entitled to permanent total disability if:

‘[A] person is totally disabled if his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in insubstantial income.’ The burden is on claimants to make a prima facie showing that their physical impairment, age, mental capacity, training, and education place them in the odd-lot category.

Wagaman v. Sioux Falls Constr., 1998 SD 27, ¶ 21, 576 N.W.2d 237, 241 (quoting Shepherd v. Moorman Mfg., 467 N.W.2d 916, 918 (S.D.1991)) (other citations omitted). In establishing “obvious unemploya-bility,” Belhassen can show either:

(1) that his physical condition along with his education and training make it obvious that he is in the odd-lot total disability category, or
(2) that he suffers the kind of continuous, severe, and debilitating pain....

Id. ¶ 22 (citations omitted) (emphasis added). Once Belhassen proves that he is “obviously unemployable,” the burden shifts to the employer to show that suitable employment is available within the community that will accommodate the claimant’s limitations. Id.

[¶ 33.] Belhassen is 53-years-old. He injured his back in October of 1993 while lifting a box at work. The diagnosis was a bulging disc with possible herniation. After two surgeries, he was gradually restricted to “light duty” work, with instructions Jo limit his twisting activity and alternate various light duty jobs. Morrell initially complied with these medical restrictions and Belhassen stood for one-hour re-trimming meat and sat the next hour assembling boxes. On March 27, 1996, Dr. Cass reported that Belhassen should continue “light duty” and avoid excessive bending and twisting.

[¶ 34.] On June 5, 1996, Belhassen was disqualified from working the re-trim position, which is internally referred to as a “Grade 4” job because it is a very strenuous position. However, on July 7, 1996, Dr. Cass’ nurse reviewed a videotape of the re-trim position, and, based on her account of the job, Dr. Cass conditionally approved the position for Belhassen. The condition was that he be allowed to sit or stand at his convenience. Besides the conditional approval, it is important to note that the videotape did not show the specific job within the re-trim department that Belhassen was asked to perform. Nor did the videotape reflect that “butt boards” would be used to accommodate Belhassen, which was contrary to Dr. Cass’ conditional approval. Furthermore, the speed of this fine was not accurately portrayed in the videotape nor the job specifications; i.e. the specific percentages of fat that had to be trimmed from the meat at the speed of the line.

[¶ 35.] On August 1, 1996, Morrell required Belhassen to work the re-trim position for eight continuous hours instead of his approved restriction of alternating jobs every hour. Coincidentally, this was the same position that Morrell disqualified Belhassen from just two months before. In a feeble attempt to comply with his medical restrictions, Morrell provided Bel-hassen with a butt board, which he could lean back against to relieve the pressure from his feet. At best, the butt board allowed him to partially sit while continuing to work. Yet, Morrell’s butt board did not comply with Dr. Cass’ work restrictions or his conditional approval of the position. Dr. Cass did not condition his approval of the re-trim job on Belhassen being allowed to partially sit.

[¶ 36.] As stated, Morrell was required to provide Belhassen with alternating positions of completely sitting down in a chair or standing. Additionally, a functional capacity assessment was issued in February of 1998 and it verifies that Belhassen was restricted to light duty and must vary sitting, standing and walking with limited bending and stooping. Even Morrell’s expert witness, Mary Ann Schuerman, who conducted an onsite job analysis, testified that the re-trim job required an employee to stand at least eighty percent of the shift, less if a butt board was utilized. This means that Belhassen could be required to stand on his feet for nearly six and one-half hours during an eight-hour shift. The fact that Belhassen refused to work an eight-hour shift on a fast, strenuous line with only a butt board available was justified as Morrell violated Belhas-sen’s work restrictions.

[¶ 37.] In summary, it is obvious that Belhassen is physically disabled and is unable to perform an eight-hour shift on his feet, even with the purported “accommodation” of a butt board. Morrell apparently agreed as evidenced by its compliance with his work restrictions for over three years and by its disqualification of Belhassen from the re-trim job in June of 1996. However, without explanation, Morrell suddenly required him to work an eight-hour shift on the “strenuous” line of re-trim, a position he was disqualified from two months earlier. It is clear that Mor-rell knew that Belhassen could not perform this job and the accommodation of a butt board was wholly inadequate.

[¶ 38.] A very significant factor in the decisions of the DOL and the majority opinion is that Belhassen was “a truck driver and infantryman in the Libyan Army for approximately seventeen years.” Belhassen’s vocational expert, Rick Os-trander, was not aware of this experience at the time he conducted his evaluation and did not consider the employment possibilities occasioned by that experience at that time. However, during the hearing, he testified that given Belhassen’s limitations, the skills acquired in Libya are not transferable to the available labor market in Sioux Falls, South Dakota.

[¶ 39.] Belhassen does not read, write or speak English. The majority opinion repeatedly attempts to shade his credibility by implying that Belhassen is somewhat capable of communicating in English. For example, the majority opinion notes:

it is quite concerning as to how Belhas-sen was able to explain to his supervisor that his move to an entire eight-hour shift on the re-trim position would violate his medical restrictions. This concern is based upon Belhassen’s continual assertions that he cannot read, speak or understand English. However, Belhas-sen apparently has a good understanding of medical restrictions phrased by his doctor in the English language.

This is a mis-characterization of the record which reflects that Morrell regularly used an interpreter to communicate with Bel-hassen. An interpreter was used at the time Belhassen met with his supervisors to discuss his ability to work the re-trim position for eight hours. It was the supervisor, not Belhassen, who referred to the terminology “medical restrictions.” In contrast, Belhassen stated, through an interpreter, that he could not work eight straight hours on the re-trim position. It is also obvious from the record that an interpreter was also used during the DOL hearing.

[¶ 40.] Belhassen has a fifth grade education, which is minimal even in his native Third World country. He can not apply for a commercial driver’s license because he reads and writes only Arabic and speaks and understands very little English. While in Libya, Belhassen drove a Toyota “bus” and passenger cars for the military. He never drove a semi-truck. It is against common sense to determine that this experience, coupled with his physical limitations and minimal English skills, provides him with a transferable skill in Sioux Falls. He can not read a map or street signs. Without an interpreter to accompany him, a job as a driver would be improbable. Even if Belhassen could read or speak English, driving a vehicle for a living would be difficult because of his physical limitations. A position requiring him to drive for long periods of time conflicts with his medical restrictions and would inevitably aggravate the existing injury or further injure his back.

[¶ 41.] Ostrander testified that in light of Belhassen’s physical condition and his limited education, training and language, his skills as a driver were not transferable. Ostrander concluded that Belhassen was obviously unemployable. He determined that these limitations reduced Belhassen’s employability by ninety-five percent and reduced his labor market access by ninety-nine percent. Therefore, Belhassen has clearly established a prima facie case of permanent total disability. The findings of the DOL were clearly erroneous and we should reverse and remand for further determination of whether Morrell satisfied its burden to show that suitable employment is available within Sioux Falls that will accommodate all of Belhassen’s limitations.

      .At the time of this action, Belhassen was fifty-one years old. He was born in Libya where he was educated only up to the fifth grade. Belhassen does not read, write or speak English. Further, while in Libya, Bel-hassen was in the Libyan army for seventeen years where he was a driver of Toyota minivans and an infantryman. Belhassen arrived in the United States in 1991 and began working for John Morrell shortly thereafter.

      . Belhassen was paid temporary total disability benefits during his time off work at John Morrell. Belhassen also received a ten percent impairment rating of the whole person and was paid benefits based upon this rating.

      . In November 1993 Belhassen was diagnosed with a bulging disk with possible herniation. Belhassen underwent an arthroscopic microdiskectomy at the L3-4 level of his spine in an attempt to correct the injury.

      . While not an issue in this case, it is quite concerning as to how Belhassen was able to explain to his supervisor that his move to an entire eight-hour shift on the re-trim position would violate his medical restrictions. This concern is based upon Belhassen’s continual assertions that he cannot read, speak or understand English. However, Belhassen apparently has a good understanding of medical restrictions phrased by his doctor in the English language.

      . The above mentioned SDCL 62-1-1(8) was substantially amended in 1994. The commission note to the current SDCL 62-1-1 notes that since the contents of the 62-1-1(8) were also adopted under 62-1-1.2, "the Legislative intent was to repeal subdivision (8) of this section because it would have been redundant.” Under SDCL 62-1-1.2, which was also adopted in 1994, "impairment shall be determined by a medical impairment rating, expressed as a percentage to the affected body part, using the Guides to the Evaluation of Permanent Impairment established by the American Medical Association, fourth edition, June 1993.”

      . Belhassen, through an interpreter, testified: “He [his supervisor, Steve Kiepke] asked me to work on the line eight straight hours. I told him I have note from doctor my back hurt - I can't handle it on the line. He said[,] no[,] you have to do it or you have to go home.”

      . The examination of Belhassen, through an interpreter, shows:
      Q: How old was he [Belhassen] when he started driving trucks?
      A: Seventeen
      Q: Okay. What kind of trucks did he drive?
      A: We have like little bus that go to - Toyota.
      Q: Toyota?
      A: Yes.
      Q: Passenger cars?
      A: Yes, sir.
      Q: Did you ever drive a semi-truck?
      A: No. Just little bus.