(dissenting).
Respectfully do I dissent herein and base my dissent, in my own jargon, as follows: The Department of Health made its decision upon methodology rather than upon reality. An elaboration follows, but I wish to strike the scope of review chord at this time, also.
Yankton Care Center, appellant, maintains: (1) The Department’s decisions of March 13 and June 12, 1985, were clearly erroneous in light of the entire evidence in the record; (2) the Department’s decisions were arbitrary, capricious, and characterized by an abuse of discretion because Department relied solely on “its own” bed need formulas and refused to consider additional evidence of need and updated population projections at a reconsideration hearing; (3) Department’s June 12, 1985 decision was made upon unlawful procedure and affected by error of law because Department refused to consider updated populations at a reconsideration hearing. Scanning these three items of advocacy, it becomes apparent that the first item is a fact question and is subject to the clearly erroneous standard of review. As pertains to the other two claims of error, these are essentially questions of law and are reviewable by this Court de novo. In re Townley, 417 N.W.2d 398 (S.D.1987); Permann v. Department of Labor, 411 N.W.2d 113 (S.D.1987); In re Guardianship of Viereck, 411 N.W.2d 102, 107 (S.D.1987) (Henderson, J., specially concurring). In said special concurrence, id. at 107, the special writer cited United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766 (1948). It was from this case that our announced and reannounced rule from In re Estate of Hobelsberger, 85 S.D. 282, 181 N.W.2d 455 (1970), was birthed. In United States Gypsum Co., it was enunciated: “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id., 333 U.S. at 395, 68 S.Ct. at 542, 92 L.Ed. at 766 (emphasis added). I am convinced that although there is some evidence to support the findings of the Department of Health, this Court, the reviewing Court, should hold that on the entire evidence, a conviction is definite and firm that a mistake has been committed by the lower court. In said special concurrence, 411 N.W.2d at 107, I quoted from Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66, 79 (1982), wherein our Highest Court in the land emphasized that the clearly erroneous standard “does not apply to conclusions of law.” In 1982, the United States Supreme Court, in Inwood Labs. v. Ives Labs., 456 U.S. 844, 855, 102 S.Ct. 2182, 2189, 72 L.Ed.2d 606, 616 n. 15 (1982), held that “if the trial court bases its findings upon a mistaken impression of applicable legal principles, the reviewing court is not bound by the clearly erroneous standard.” We must, as I said in this special concurrence, 411 N.W.2d at 107, bifurcate with certainty, our scope of review on findings of fact and conclusions of law. In Bennett v. Jansma, 329 N.W.2d 134, 136 (S.D.1983), Justice Morgan, writ*75ing for a unanimous Court, wrote, inter alia, “[w]e review the conclusions of law to determine whether they are in error as a matter of law.” Therefore, two of the three basis of this appeal are grounded upon contentions of errors of law.
FINDING OF NO BED NEED WAS CLEARLY ERRONEOUS
It is apparent that the Department of Health decided that there was no bed need by using “formulas”; these “formulas” were both complex and unwieldy. In determining that there was no bed need, basic facts were cast aside and rigidity was used via “formulas.” Forgotten was the human element, namely that elderly people were seeking placement in Yankton and were being placed outside of Yankton County, long distances away from their friends and families. State Department of Health conceded that Yankton Care Center had good plans and good finances. Yankton Care Center was a good facility with a fine quality of service. This is substantiated by the record. Preceding the year in which the application was filed, there were 42 people on Yankton’s waiting list. Does this suggest that there was no “need”? Extensive evidence was submitted by appellant reflecting individuals who sorely needed placement in this particular facility. Yet, this state agency shut the door on them. In fact, in the City of Yankton, it was established by evidence that there existed a 98% occupancy rate and there were only a few vacancies which were accounted for by death or moves or replacements. Appellant submitted studies reflecting that the elderly population was increasing throughout the nation and that it was dramatically increasing in the Yankton, South Dakota area, all of which would suggest that there would be an additional need for beds in the future. Furthermore, evidence was submitted to establish that hospitals were discharging patients at an earlier time than in past years because of costs and hospital needs and that this was likewise impacting the increasing elderly population’s need for beds in a facility such as the appellant. Projections by the University of South Dakota professor were admitted into evidence proving that there was an increasing elderly population in the City of Yankton and in the area immediately surrounding it. Actually, the professor’s projections were, using four different theories, that shortages would exist of either 45 beds, or 35 beds, or 55 beds. By the year 1990, an additional projection was testified to that there would be a shortage of 59 beds. To avert any denial of its application, appellant presented evidence establishing that alternative services, i.e., home health, were well developed in the City of Yankton and Yankton County and were being extensively utilized.
It appears that the Department rejected all updated population projections and used its own “bed need formula” to determine that there was actually a surplus of beds in the City of Yankton. Apparently, the Department opined that there were available beds across the county line which would meet any shortage of beds in the Yankton County area. This appears to be a rather callous viewpoint towards the sentiments and humane considerations of elderly people in desiring to spend the twilight of their life in their home community. Again and again, the Department of Health, using its formulas, seemed to say that there was a lack of bed need by “relevant formulas.” I cannot believe that these formulas are “etched in stone.” It appears to me that the Department refused to take into consideration factual evidence of need presented by appellant, not to mention all of the updated population projections. Put another way, the Department of Health used methodology upon which to base its decision and not reality. Surely, under the Administrative Rules of South Dakota, cited in the majority opinion, it is clear that an exception was established. I note that Clay County, adjacent to Yankton County, has facilities for the elderly and there was evidence establishing that these facilities were totally full. Also, there was evidence to show that the City of Yankton is not only a commercial hub in that area, but also a medical hub with excellent hospitals and training facilities for young nurses. Therefore, I am compelled to state that the Department’s decision to deny this applica*76tion for 30 additional beds is clearly erroneous and should be reversed. In re Estate of Hobelsberger, 85 S.D. 282, 181 N.W.2d 455 (1970).
ARBITRARY, CAPRICIOUS, ABUSE OF DISCRETION BY DEPARTMENT OF HEALTH
Department is not, unto its own self, true. Yankton County and the City of Yankton seem to be meaningless to the Department’s decision. In fact, on page 33 of its brief, the Department reflects, the “Department’s evidence indicated a need for additional beds in Yankton County is of no moment.” As indicated, the Department uses, and is required to use, the service area population served by the facility’s proposed project set forth in the MFP as the primary criteria for determining bed need. In my opinion, from reading this case, Yankton County and, particularly, the City of Yankton, is the applicable service area and the Department of Health superficially substitutes methodology for reality. In its June 12 decision, the Department clearly expressed that its decision to deny the application was based on a lack of bed need as indicated by the “relevant formulas.” The trial court found that the Department of Health used its bed need formulas “exclusively” and expressed that it was “compelled” to write an addendum to the trial court’s decision. This agency clearly refused to recognize an exception which was established by a state regulation. This is a mistake of law; it is an error of law; it is a misapprehension of law. Inwood Labs. v. Ives Labs., 456 U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982). Oft over, the Department, not only below, but in its brief, structures itself legally in this position: Bed need is determined by using only the bed need formulas. To project need, by a formula only, is unrealistic. Department maintains that its formula is absolutely accurate and reliable. You cannot apply formulas in total isolation. It does not make sense. See Department of Health v. Lutheran Hosp. & Homes Soc., 227 Neb. 116, 125-29, 416 N.W.2d 222, 228-29 (1987). In In re Application by St. Luke’s Hosp., 414 N.W.2d 297 (S.D.1987), this Court recognized that, spiritually, the state health plan was not a plan which provided total, absolute, mandatory rules and regulations to either be complied with or violated. Rather, our state health plan, so said this Court, was to establish broad policies and general goals. Surely, a goal cannot be to prevent elderly people from having a bed when they need it because of some strict interpretation of a formula.
DEPARTMENT’S DECISION WAS MADE UPON UNLAWFUL PROCEDURE AND AFFECTED BY OTHER ERROR OF LAW
A reconsideration of Certificate of Need applications is set forth in ARSD 44:01:14:01. Essentially, a party may request a reconsideration upon a decision based upon new, relevant information which the Department had not considered before or significant changes in the factors or circumstances relied upon by the Department when it reached its original decision.
This health care facility submitted three items of new evidence which had not been previously considered. This consisted of population projections for the area and an in-and-out migration data with information pertaining to the existence of alternative services. The Department, summarily, expressed that it refused to consider this new evidence. Instead of opening its mind and then opening the door of reconsideration with relevant evidence, the Department of Health chose to be unyielding with its grip on the single formula and methodology it employed. If this health facility’s evidence had been reconsidered, an open mind would see that there was an extensive need for beds existing in the City of Yankton and in Yankton County. In fact, one of the new projections, based upon 1990 population figures, established that the shortage of beds would be as high as 81. There are in-migration residents from the State of Nebraska which further impact Yankton, a historical city near the great Missouri River which separates Nebraska and South Dakota. Data, statistics, projections, and evidence were not even considered upon an *77application for reconsideration because the agency had “made up its mind.”
As I have said in the past, when government bureaus and agencies go awry, which are adjuncts of the legislative or executive branches, the people flee to the third branch, their courts, for solace and justice. I cannot, in good conscience, join the majority opinion which prevents elderly citizens from having a bed, with medical care and treatment, administered compassionately, in a community where their children and grandchildren reside. I would elevate reality over a single methodology and accordingly dissent.
“[Tjherefore never send to know for whom the bell tolls; it tolls for thee.” John Donne (1573-1631), Devotions upon Emergent Occasions, Meditation XVII. My mind drifts to Ernest Hemingway. And a clod of dirt. Chipped away from the shores of Europe by the sea. “If a clod be washed away by the sea, Europe is the less....” Supra. All from whence, Hemingway’s great novel was born. And, yes, not a person is turned away from a bed of repose, in his older years, but South Dakota is lesser — in spirit. A refrain also comes to my mind: “And crown thy good, with Brotherhood, from sea to shining sea.”