In another signal that South Dakota values business profits over a healthy environment and quality of life, Governor Kristi Noem last week signed a bill making it harder to hold agribusinesses accountable for polluting the prairie. House Bill 1090 denies standing to bring private nuisance actions against agricultural operations to anyone other than owners or lessees of property “within one mile of the source of the activity or structure alleged to be a nuisance”. That means grassroots organizations like Dakota Rural Action cannot file nuisance complaints.
That narrow class of plaintiffs must clear HB 1090’s higher legal standard of “clear and convincing evidence that the claim arises out of conduct that did not comply with any county, municipal, state, or federal law or regulation.” And on the off chance that any plaintiff can meet that higher standard and win a nuisance action, HB 1090 limits compensatory damages to the reduction of fair market value caused by the nuisance to the plaintiff’s property. The newly signed bill also says plaintiffs can’t get punitive damages unless their claim is based on conduct “that was subject to a civil enforcement judgment or criminal conviction” that occurred “within three years of the first action forming the basis of the nuisance action.” Translation: your nuisance action wins no punitive damages unless the county or state or feds also go after the polluting farm and the polluter’s lawyers lawyers aren’t able to at least delay a judgment for three years.
The Noem Administration claims HB 1090 will protect farmers from “frivolous” lawsuits and benefit “every single family that lives here“, but folks who’d like to protect the land and quality of life for every single family that lives here say HB 1090 goes too far:
Dakota Rural Action, which advocates against large factory 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 [Joshua Haiar, “New State Law Makes It Harder to File a Complaint or Lawsuit Against Ag Operations,” South Dakota Searchlight, 2023.03.15].
In testimony to House Agriculture (and Natural Resources) in January, Secretary of Agriculture (and Natural Resources) Hunter Roberts peddled the fiction that all those frivolous lawsuits make it harder to “keep our farmers on the land, and keep them doing what they do so well.” Secretary Roberts is looking for an easy scapegoat to a much more complex socioeconomic problem: it’s hard to get new talent to replace the aging, dying generation of farmers when land costs and arm and a leg and there are much easier ways to make much more money in much nicer places that don’t stink of cow poop. Solving those problems are evidently beyond the ken of Roberts and Noem. Rather than making South Dakota more appealing to a wider variety of workers and businesses, they will keep sacrificing clean air and water to one polluting industry that supports fewer workers and crowds out other economic diversification opportunities.