New state law makes it harder to file a complaint or lawsuit against ag operations

MITCHELL — A new South Dakota law makes it harder to file a nuisance complaint or lawsuit against an agricultural operation and limits the amount of money that can be awarded.

Governor Kristi Noem signed the bill on Wednesday at a farm implement dealership in Mitchell, after legislators approved it earlier this winter. The law will go into effect July 1. 

Noem said it’s about protecting farmers from frivolous lawsuits.

“I think we all know agriculture is the number one industry in our state,” Noem said. 

The new law addresses complaints or lawsuits against operations such as farms, ranches or factory farms, for nuisances such as odors or pollution.

Provisions in the new law say only the owner or lessee of an affected property can file a nuisance action, and only if the affected property is within 1 mile of the agricultural operation. 

Those provisions are intended to prevent an environmental group such as the Sierra Club from suing an agricultural operation.

That’s welcome news for Travis Mockler, a southeast South Dakota farmer who attended the bill signing ceremony. The Sierra Club sued Mockler and the Clay County Board of Adjustment in an attempt to stop a permit to expand his hog and cattle operations.

Mockler eventually built the expansion, after multiple years of legal battles. 

“This bill, if it would have been in place at the time, would have solved all of that,” Mockler said. 

.@govkristinoem signed a new bill on Wednesday that makes it harder to issue nuisance complaints against agricultural operations. She said it’s about protecting farmers from frivolous lawsuits. Story coming soon… pic.twitter.com/uUXIyC3zB2

— Joshua Haiar (@JoshuaHaiar) March 15, 2023

‘Too far’ for opponents

Dakota Rural Action, which advocates against industrial scale farms in favor of smaller family farms, expressed concerns about the bill during the legislative session.

“There are smells and noises that can potentially travel more than 1 mile, so we’re wondering how that decision was made,” spokesperson Chase Jensen said at the time.

The Izaak Walton League of America, a wildlife conservation organization, opposed the bill. 

“The bill is unnecessary due to the low number of lawsuits that have been filed, and it just went too far,” Paul Lepisto, a spokesperson for the organization, said Wednesday.

Additional provisions in the new law say the person filing the complaint or lawsuit, in order to hold an ag operation liable, must present “clear and convincing evidence” that the operation violated local, state or federal laws or regulations.

In cases where the nuisance is permanent, the new law says compensatory damages will be measured by the reduction in the fair market value of the plaintiff’s property, and the amount cannot exceed that fair market value. If the nuisance is temporary, the damages are limited to the reduction in the fair rental value of the property caused by the nuisance. 

The new law says punitive damages cannot be awarded unless the case has been subject to a judgment or conviction by the courts or a federal environmental regulatory agency in the prior three years.

A degraded lake next door

The city where Noem signed the bill, Mitchell, is home to a lake polluted in part by agricultural runoff that feeds algae blooms and harmful E. coli levels. The new law could make it difficult for the city of Mitchell or Lake Mitchell homeowners to seek a legal remedy for pollution that enters Firesteel Creek more than a mile upstream and flows into the lake.

When asked about that situation, the governor said the law should not indicate to those homeowners that their frustrations are frivolous. She said the law does not change any legal or regulatory limits on pollution.

“All water quality permits and anything that would be set at the city level, county level, and state level would still have to be met,” Noem said.

State Sen. Josh Klumb, R-Mitchell, was the prime sponsor of the bill in the Senate. He would consider legislation to improve water quality in Lake Mitchell, he said, but “there wasn’t anything in that area” introduced during the annual legislative session that concluded earlier this month.

“If someone could bring me something that says this is the area of the law that we need to change, we can discuss that,” Klumb said. “But I haven’t seen that.”