Parties in suit weigh next move in Aurora Co. action

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PLANKINTON — Scheduling for a trial to determine the amount Aurora County will pay in damages to Thompson Farms is already in the works, only days after a court ruling made the county liable.

The Sioux Falls-based lawyer for Thompson Farms, Mark Meierhenry — a former state attorney general — said e-mails have already been exchanged among the concerned parties regarding the scheduling of the damages trial, which has been on hold since 2009 while Aurora County settled litigation with its liability insurance provider.

Although a trial determining what damages are owed seems to be the next major step, the end of litigation could still be far off.

“There will be an end in sight, but I can’t say when,” Meierhenry said. “We’ve been waiting two-and-a-half years for the county to get its business straight with the insurance company. That gives you an idea of how long these things take.”

A Davison County jury decided Friday that Aurora County failed to provide its liability insurance provider — the South Dakota Public Assurance Alliance — with timely notice of the litigation involving Thompson Farms. The ruling means the insurer is not liable for damages, and it could leave Aurora County and its taxpayers with a bill for millions of dollars.

The potential damages stem from a 2009 ruling that said Aurora County essentially forced Thompson Farms, a multimillion-dollar dairy, to close because of a 1998 zoning ordinance limiting the number of animals allowed at an animal-feeding operation.

Thompson Farms had already invested a significant amount of money into expansion plans before the zoning ordinance was enacted.

Unless Aurora County chooses to appeal Friday’s ruling, a trial to determine what damages the county owes would be the next fight in a controversy that has lasted 14 years.

Aurora County has 30 days from Friday’s ruling to determine if it wants to appeal the decision.

Keith Thompson, the former owner of the Thompson Dairy, declined to comment on Friday’s ruling “because we have a long way to go yet.”

Meierhenry declined to publicly estimate the amount he will seek in damages for his client.

The determination of damages, he said, will include the difference between the value of the dairy without the restrictions imposed by the county ordinance compared to its value with the restrictions in place.

The damages could reach into the millions of dollars. The findings and conclusions from a 2009 ruling in favor of Thompson Farms revealed $1.8 million to $2.4 million of equity had been put at risk in order to acquire loans for new dairy facilities. Prior to its plans for expansion, Thompson farms had $3 million to $4 million invested in its operation, and $6.4 million afterward.

After the county’s zoning ordinance was enacted, the Thompsons sold their farm for about $3.5 million.

Aurora County State’s Attorney John Steele remained optimistic about the county’s chances in court.

“Hopefully we’re not going to have to pay for it, because hopefully we’ll win the damages trial or the liability trial at the Supreme Court level,” he said.

Last week’s jury verdict against the county and in favor of its insurer was the second verdict in that case. The insurer won a previous trial, but the county appealed to the state Supreme Court, which ordered the new trial that occurred last week and ended in another victory for the insurer. The new trial was ordered on the basis of some improperly excluded evidence from the first trial.

Steele declined to comment on how Aurora County — with a population of 2,710 people covering 708 square miles — would pay for any damages it could be found to owe Thompson Farms.

Steele has been involved in the litigation regarding Thompson Farms since it began, and he agreed the battle in court could be far from over.

“If litigation goes forward, it could take awhile,” he said. “I can’t speculate on how long, but it’s gone on for a while longer than I ever anticipated when it got started.”

Aurora County Commissioner Pat Cranny declined to comment on any matter regarding Thompson Farms in a phone interview with The Daily Republic.

No other county commissioners could be reached for comment.

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