(dissenting).
[¶ 31.] One might have no real problem with this decision IF the judge held a trial, listened to the evidence, determined credibility of the witnesses, considered the arguments and briefs of counsel, and impartially decided the case on the facts. But, for the judge to jump the gun and decide this case on summary judgment without a trial is simply dead wrong.
[¶ 32.] The summary judgment decision of the judge without a trial violates our remand instructions, which were, as stated in the majority opinion at ¶ 6:
We remanded the action for a factual determination of whether County’s conduct was “truly irrational” in order to sustain Landfill’s § 1983 claim and whether Landfill had a protected property interest in the approved permit.
It seems incredible that the judge jumped the gun legally in Tri County II and jumped the gun again factually in Tri County III. We should send it back until it is done right both factually and legally.
[¶ 33.] As stated in my writing in Tri County II, 2000 SD 148 at ¶¶ 44-46, 619 N.W.2d at 676 (Sabers, J., concurring specially in part and dissenting in part):
The facts underlying our holding in Tri County I must rise to the level of the “truly irrational” standard and not merely an arbitrary and capricious action to create liability for the County in a § 1983 claim. Yet that does not mean our determination in Tri County I that the actions of the County were arbitrary and capricious negates the possibility of such a showing. In fact, they substantially support it.
A County is bound by the actions of its duly elected commissioners. See McQuillin, Municipal Corporations § 26.81.20 (3d ed. 1995) (discussing the validity of subsequent actions by commissioners). Therefore, a subsequent reversal of a prior decision by newly elected commissioners is clearly wrong, “arbitrary and capricious.” These facts under Chesterfield go a long way to “give rise to a violation of rights secured by the Constitution,” even if it does not do so “automatically.” See Chesterfield, 963 F.2d at 1104. Therefore, even if not “automatically” “truly irrational” and subject to summary judgment by the court, it is prima facie evidence for the trial court in this case.
Therefore, to show that a protected property interest exists, it is only necessary for Tri County Landfill to show “a lack of discretion on the part [of Brule County to deny the issuance of the permit].” See Villager Pond, Inc., 56 F.3d at 379. The majority’s statement that “[p]rior decisions from an elected official’s successor in no way binds the elected official currently occupying the elected position” is wrong. While it is beyond dispute that incoming officials can change “policies, procedures, and even key personnel of their predecessors ... and implement their own policies” they cannot ignore a constitutionally protected property interest if it is found to exist. On remand, this is part and parcel of the factual questions to be determined by the court.
[¶ 34.] How in the world can the judge determine whether the actions of Brule County (and especially those of the newly elected commissioners) were “truly irrational” without making determinations of credibility, motive and intent?6
*157[¶35.] We should reverse and remand for a fair trial.
. Finally, Landfill's concession on oral argument that no genuine issues of material fact remained and that the only remaining issues were legal conclusions to be drawn from uncontested facts is clearly wrong because of issues of credibility, motive and intent.