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Proposed legislation protects South Dakota animal operations from 'frivolous' nuisance lawsuits

Supporters say nuisance lawsuits, which often target the potential for property devaluation that comes from agriculture-related odors, are a drag on the state's economy.

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Hog farms and dairy operations are seeing the greatest growth in CAFO development in South Dakota due to high demand. A planned bill would help continue this growth by making it more difficult to bring nuisance lawsuits.
Bart Pfankuch / South Dakota News Watch
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PIERRE, S.D. — New legislation introduced at the request of Gov. Kristi Noem would help eliminate frivolous nuisance lawsuits against farms and animal operations, advocates of the bill say.

Though not submitted to the public record yet, a draft text of the bill obtained by Forum News Service indicates that those bringing nuisance claims against agricultural operations — such as complaints of sound from wind farms or smell from hog houses — would have to be the “legal possessor of the real property affected… and the real property is located within one mile of the source of the activity.”

In the legislature, the bill will be carried by Rep. James Wangsness of Miller and Sen. Josh Klumb of Mitchell.

Klumb said the point of the bill is not to deter those who suffer actual damages to property value from suing for recourse; rather, the intended aim is to eliminate the litany of lawsuits brought by environmental groups or neighbors with less-than-tenable connections to the potential negative effects from the operation under scrutiny.

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Sen. Josh Klumb

“We're not saying absolutely nobody can sue any livestock producer or anything. They’ve just got some parameters now,” Klumb said. “That’s because there's a lot of groups out there that want to see animal agriculture shut down, especially confined animal agriculture. They want it gone. So they use every loophole they can to try to shut it down.”

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The bill would also raise the bar for evidence in a nuisance lawsuit, as plaintiffs would have to bring “clear and convincing evidence” that the damages arise out of actions that do not comply with environmental regulations.

The law does not apply to any cause of action beyond nuisances, such as negligence, trespassing or personal injury.

In a press release announcing the planned legislation, Noem framed certain lawsuits against agriculture operations as damaging to the wider economy.

“Agriculture is by far our state’s largest industry, accounting for one out of every five jobs in South Dakota. We need to preserve it,” Noem said. “When agriculture operations are attacked with frivolous claims, it can delay development and increase costs for producers.”

Glenn Muller, the executive director of the South Dakota Pork Producers Council, supported the idea of raising the barrier for standing in certain lawsuits.

Pointing to a several-year nuisance lawsuit saga in Turner County that recently ended with a South Dakota Supreme Court ruling in favor of the concentrated animal feeding operation, Muller made the argument that these lawsuits often damage producers even in a favorable decision.

“There are tremendous time losses with these lawsuits, and costs associated with legal costs, and the increased cost of construction,” Muller said.

The bill also clarifies how courts should evaluate a fair penalty when settling these nuisance claims, with awarded damages for a permanent nuisance limited to “the reduction in the fair market value of the plaintiff’s property caused by the nuisance,” and a temporary nuisance confined to the reduction in rental value over the duration of the disturbance.

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Wangsness said the clear rules on who can sue, what evidence the plaintiff must bring and what damages are available should do away with lengthy court fights.

"The way things are written now is they start dragging business owners into court, costing them money and putting them out of business," Wangsness said. "It could be a family operation that has been there for 100 years and, all of a sudden, maybe they just wanted to expand or upgrade or something like that. And then people just come out of the woodwork."

MORE BY JASON HARWARD
“We see that when things happen in the coastal areas, a few years later, they start trending toward the Midwest,” said Rep. Ben Krohmer, serving his first term in the House.

Jason Harward is a Report for America corps reporter who writes about state politics in South Dakota. Contact him at 605-301-0496 or jharward@forumcomm.com.

Jason Harward covers South Dakota news for Forum News Service. Email him at jharward@forumcomm.com.
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