Reporting noise, strong odor from a South Dakota farm could soon become harder for residents

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In January, Gov. Kristi Noem heralded House Bill 1090 as a bill that would "preserve agriculture," South Dakota's largest industry, from frivolous nuisance lawsuits.

The bill, introduced on Jan. 19 and passed by the South Dakota House with a 61-9 vote a week later, seeks to shelter the state's No. 1 industry from such claims by making it more difficult for an alleged victim to prove their case. It would also limit their ability to receive compensation for punitive damages, which could de-incentivize people from filing a lawsuit in the first place.

While the legal definition of "nuisance" is intentionally broad, in the realm of agriculture, this term can include smells or noises from a farm or commodity processing facility that compromises the comfort and safety of another party, interferes with travel on waterbodies, roads or public spaces, or poses a risk to one's life.

However, legal experts argue not only would the bill unfairly shift the legal burdens against potential victims of nuisances in the future, but certain agricultural operations could also lose some of their standing protections against nuisance lawsuits.

Brendan Johnson, a Sioux Falls attorney and former U.S. Attorney, said for a claimant in a typical nuisance lawsuit to successfully argue their case, they must meet a "preponderance of the evidence." That means one's legal argument is even the slightest amount more convincing than that of the person they're going up against.

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The proposed legislation raises the requirements for a claimant to meet the burden of proof to the next highest level, "by clear and convincing evidence."

But David Ganje, an environmental attorney based out of Rapid City, said that's not only "unfair" to victims of nuisance-related problems, it is also notably more than what a standard nuisance lawsuit requires.

"It's an extreme requirement for proving evidence, and that's really important to understand," Ganje said. "The proposed proof under the legislation is the next highest burden of proof in the law, only just less onerous than the criminal burden of proof in criminal cases, which is 'beyond a reasonable doubt.'"

However, the new law would not extend the proposed protections to a farm or processor in cases of negligence, when the alleged nuisance actually injures or poses a public health risk, because of emissions that break any environmental laws or regulations.

"It could include an invasion of your property by the wrongful use of a upstream pond. It could be caused by smells," Ganje said. "It could be caused by, let's say, a cement plant next to your property, which had emissions coming out of its piping system that created pollution or made the air difficult to breathe, so the breadth of nuisance is by law meant to be very broad."

The proposed legislation would also include agritourism activities under the current statute's definition of an "agricultural operation," and allow farms to change the type of animal or crop being raised without losing their protected status.

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Are nuisance claims really agriculture's biggest problem?

One of the key reasons the legislation was drafted was to protect farmers from frivolous nuisance claims, Noem said in a Jan. 13 press release announcing the bill. To that end, the legislation establishes limitations against who can pursue a nuisance action and conditions for whether and how compensation is given to a claimant.

Glenn Muller, executive director of South Dakota Pork Producers, said nuisance lawsuits, successful or not, can be detrimental to new agricultural operations. That's because the claim can delay construction of the facility and cost the operations a significant amount of money to battle.

Muller added there is "no limit" to how much compensation a successful claimant may attempt to receive.

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Ganje is doubtful, however, of the financial impact of the lawsuits as someone who is obliged to keep up with case law and current developments.

"I am unaware of any statistics that show that nuisance claims create an economic burden on property owners," Ganje said. "Quite frankly, there's no such data that is available. I've never seen any economic data, any studies or anything from the University of South Dakota or South Dakota State or anywhere. I'm generally familiar with most of the nuisance claims that occur in South Dakota... And I'm not aware of anybody that's ever made a claim like that, so I find that to be a political claim."

Argus Leader reached out to the bill's prime sponsors, Rep. James Wangsness and Sen. Joshua Klumb, on Friday morning to provide examples of statistics related to nuisance claims and ask if said statistics were taken into account while the legislation. Neither legislator responded to our request for comment.

There is currently a law in place that allows an agricultural operation to recoup the aggregate amount of costs and expenses incurred when fighting the action, as well as a reasonable amount of attorney's fees, if the court finds the claim to be frivolous.

According to the bill's language, nuisance actions may not be filed against an ag operation unless the claimant possesses affected property within 1 mile of the source of the alleged nuisance. This is distinct from the current law, which states claimants need only occupy a space or land within 1 mile of the nuisance in question.

This amended section intersects with another included in the legislation, which limits the damages recoverable by a claimant.

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In cases of a permanent nuisance, the compensation would be based on the lost value of the affected property, while cases of temporary nuisance would be limited to the "reduction in the fair rental value" of the property.

"The damages limitation is pretty significant and reduces the potential liability of a defendant," Johnson said. "The punitive damages limitation looks like it would make it nearly impossible to get punitives for a nuisance. This would significantly reduce the incentives for a plaintiff (or a lawyer) to bring a nuisance claim," Johnson said.

This could also pose a problem for renters, since tenants may not be considered possessors of the properties they inhabit and may not have landlords willing to pursue legal action on their behalf, Ganje suggested.

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Bill could do more harm than good to certain farms

What's strange to Ganje is the possibility this proposed bill contradicts a standing nuisance law in a way that could actually make certain farms more vulnerable to nuisance lawsuits.

According to South Dakota codified law, it is impossible for facilities operating under "the express authority of a statute" to be deemed a nuisance.

Ganje said one interpretation of the law exists, that when a facility is given the right to operate from a government agency, like in the instances South Dakota Public Utilities Commission grants wind farms their permit to operate, the facility is considered to be working under "express authority" of the law.

Ganje points to a new section of the legislation that indicates an ag operation with "express authority" protections may be sued if the facility did not comply with "any county, municipal, state, or federal environmental law or regulation." Examples include wind farms and concentrated animal feeding operations (CAFO).

"Under the new law, if you show something that violates a statute, you might be able to pursue the claim, but we already have a law that says that you can't pursue nuisance under the authority of a statute, if there's a statute that allows them to [operate]," Ganje said. "Now, they're saying 'Well, we might, we might let you pursue a nuisance if it violates the current law.' Well, that's interesting, because the current law was meant to immunize almost everybody that was a CAFO or a wind farm, et cetera. It's very curious. I don't think they thought that through."

HB 1090 remains to be passed by the South Dakota Senate. The bill's next scheduled hearing is Tuesday.

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Dominik Dausch is the agriculture and environment reporter for the Argus Leader and editor of Farm Forum. Follow him on Twitter and Facebook @DomDNP and send news tips to

This article originally appeared on Sioux Falls Argus Leader: South Dakota's ag bill 'unfair' to nuisance victims, experts say