Noem signs ag nuisance bill to stop 'frivolous lawsuits,' but scope of problem lacks hard evidence

MITCHELL ― Standing in front of a John Deere tractor with an assembly of South Dakota farmers lined behind her, Gov. Kristi Noem added her signature to House Bill 1090 on Wednesday at C&B Operations, codifying a new law that would make it harder for victims of farm-related nuisance problems to bring their case to court.

It was a sight much different than what occurred about a month ago, when South Dakota farm groups near-unanimously testified in opposition of Senate Bill 185, a now dead piece of legislation that would have founded a state-run board to limit foreign entities from purchasing ag land in South Dakota.

But Wednesday's moment marked a sign of common ground between Noem and the state's ag groups, who will benefit from the enhanced protections afforded by the new law.

Loud noises and bad smells are common reasons one would file a nuisance claim, and farms, especially ones that raise livestock, can be a source for both. But according to the now-signed law, only victims who own property within 1 mile of the alleged nuisance would be allowed to file a lawsuit against an agricultural or agritourism operation.

It would also raise the burden of proof in such a case from a "preponderance of the evidence" ― legal language in which an alleged victim must be slightly more convincing than their opponents ― to "clear and convincing evidence." The latter is the second highest legal standard of proof in the land, with only "beyond a reasonable doubt" is higher.

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

HB 1090's last major changes included an amendment to limit a defendant's punitive damages should a victim prove a farm violated environmental laws. And compensation for affected property owners, per the new law, is assessed based on the lost value of said property, which varies on whether the nuisance is permanent or temporary in nature.

New law changes the balance of property rights in South Dakota, attorney says

Sen. Joshua Klumb, a prime sponsor of the bill, said the law is meant to protect South Dakota's No. 1 industry from attacks by groups opposed to agriculture. Rep. James Wangsness, Klumb's counterpart, concurred, claiming there has been a rise of nuisance claims across America.

South Dakota Farm Bureau president Scott VanderWal squarely laid the blame on radical environmental groups with an agenda to attack the agriculture, as well as consumers "who don't necessarily understand agriculture."

But the issue this bill intends to solve remains hard to quantify. Asked whether HB 1090's main backers were aware of any data or studies measuring the prevalence of frivolous nuisance lawsuits filed against ag operations, VanderWal said no.

"I don't have any hard numbers as far as the attacks on agriculture and things like that," VanderWal said during a question and answer period about the bill. "But I would just say that … I think this bill will help address that as far as keeping people from filing lawsuits that just don't have any basis to them."

Travis Mockler, a board member of South Dakota Corn and farmer who runs diversified crop and stock cow operation near Centerville, is one such person who said he was hit with a nuisance lawsuit in 2019, taking from him money, time and energy.

"It didn't shut me down, but I couldn't move forward. The biggest problem was with the timing. What happened was once COVID hit, the price of everything took off, so our construction costs went through the roof," Mockler told the Argus Leader on Wednesday. "The biggest one for me was my home life, the way a lawsuit affects, you know, the family … Just tough for them. It was hard on my wife."

It's a picture David Ganje, an experienced environmental lawyer from Rapid City, doesn't offer a lot of sympathy. In one of the original South Dakota Supreme Court filings, Mockler's farm is considered a concentrated animal feeding operation, or CAFO, which Ganje said means he should have had enough money to handle potential litigation.

"He's got a CAFO. That's big leagues. He's got some juice. So when you've got juice, you know to expect it's not going to be an easy life to perpetuate a new development or a new business enterprise," Ganje told the Argus Leader.

Asked how much costs and expenses he incurred as part of the lawsuit, Mockler declined to comment.

There is currently a law on the books that allows an agricultural operation to fully recover the costs and expenses associated with a frivolous nuisance claim and a reasonable amount of attorney's fees. There is no similar law for alleged victims. Instead, plaintiffs who lose their suit could actually be served and taxed on the costs of the case.

Ganje said South Dakota has developed a reputation as a property rights state that promulgates one's free use of land and buildings without interference from government, businesses or neighbors.

Yet this new nuisance law is not properly balanced, because it proffers special protections for one sector of property owners ― farmers ― over another, the lawyer said.

"The nuisance law of the state as it exist[ed] is not radical. It's not an extreme law. It's not a law written by environmentalists," Ganje said. "It's ironic. How is that? Well, it becomes more difficult for a neighbor to tap his neighbor on the shoulder and say, 'Hey, please don't do that. That's affecting my livelihood.'"

More:These high-profile cases show nuisance lawsuits are an uphill battle for victims in South Dakota

In his observations, the Rapid City lawyer said victims do not primarily sue for money, but to stop or otherwise diminish the impact of sources of nuisances. However, as with a CAFO or any other farm operator, nuisance victims also incur legal fees and feel the effects of anxiety throughout the process, which can be its own deterrent to taking action, Ganje added.

"I've never seen statistics that show an excessive amount of nuisance claims or litigation based on nuisance claims," Ganje said. "If there were a lot of people in South Dakota that had to defend a lot of cases … They would all get together and they would disclose to the South Dakota Farm Bureau or they would disclose the South Dakota Farmers Union, they would disclose, to the wheat growers or the pork producers, they would disclose to them, 'Oh, we've got 22 farmers across the state and each of them had to pay $45,000. Oh boy, the legislature would eat that up' … but you don't see those statistics."

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 ddausch@gannett.com.

This article originally appeared on Sioux Falls Argus Leader: Gov. Kristi Noem signs ag nuisance law protecting farmers property rights