Press "Enter" to skip to content

Noem Signs HB 1090 to Insulate Polluting Agribusiness from Nuisance Complaints

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.


  1. Nick Nemec 2023-03-20 08:30

    Giant dairies, huge hog confinement and poultry operations are more responsible for reduced agricultural opportunities for young South Dakotans than lawsuits against problematic operators who show little regard to their neighbors.

  2. larry kurtz 2023-03-20 13:41

    Today, the Lewis and Clark Rural Water System exists because farmers have poisoned their own wells and the Big Sioux River but South Dakota will flout Waters of the United States rulings until the cows come home unless or until downstream states cry foul.

    To the Editor:

    I drove to Burger King recently, where the meal was excellent, but the soft drink was not. The taste of chlorine was overwhelming. This is not Burger King’s fault. The fault belongs to the municipal water supply. However, it is only reacting to the quality of the water given. The fault lies further back in the chain.

    The Firesteel Creek watershed begins in the Wessington Springs area and ends at Mitchell. The farming community along this watershed is likely responsible for the high concentration of nitrogen from crop fertilization runoff. This nitrogen is responsible for the yearly algae bloom in Lake Mitchell.

    Recently it has been noted the lake also has a high concentration of fecal bacteria. That indicates livestock along the creek are also poisoning our water supply. It may also be possible that lakeside residents who do not subscribe to our municipal sewage system and Firesteel Creek residents further upstream may be dumping their sewage overflow into the creek and the lake.

    Quite often when I cross the West End Bridge, I smell raw sewage. That smell should not be present at any time. It’s easy for me to conclude that a handful of people up and down Firesteel Creek are poisoning the water supply of 15,000 residents.

    I suggest we not use any water from Lake Mitchell for residential consumption. We should, at least for the near future, receive 100 percent of our water supply from the Missouri River pipeline. Then, we should take steps to clean up the Firesteel Creek watershed and hold the polluters lawfully responsible.

    Farming and land management preferences do not trump the safety and well-being of 15,000-plus citizens. This problem has been swept under the rug numerous times in the past by numerous city administrations who are beholden to the Mitchell Area Chamber Of Commerce.

    If Mitchell loses their agricultural profits, we will have less to spend on vital infrastructure, such as bike paths.

    We have a new mayor willing to listen more to common sense and less to chamber control. The time has come to knock on his door.

    Ray and Dorthea Berlin


  3. Arlo Blundt 2023-03-20 16:51

    I agree with Ray Berlin’s letter quoted by Mr. Kurtz and with the Ikes who are always on target when it comes to environmental issues. Grew up near Firesteel Creek and it rises in the hills between Wessington Springs and Miller in the area of Lake Louise and its source is a relatively pristine area. It flows through what could be described as the bitter end of the corn belt, with many family farms that grow corn and feed cattle and hogs. I don’t believe these folks pollute any more than your average South Dakota farmer with similar operations, but the cumulative effect, and the fact that near its’ conjunction with the mighty James, the Firesteel is dammed for Lake Mitchell, probably concentrate and amplify the pollution. This new law will just prolong the agony and ill effects.

  4. e platypus onion 2023-03-20 18:13

    Noem Nothing claims to dislike immigrants, but, allows humongous feeding operations to thrive and they hire almost exclusively, durned furriners that allow these vast waste makers to make more profits. Noem is too stoopid to be breathing on her own.

    Wonder how westerners will feel about Noem if they get a pipeline full of Big Sew Sewage water?

  5. Arlo Blundt 2023-03-20 18:33

    Sorry, I’m Mistaken. Firesteel does not rise as far northwest as Lake Louise. It rises from a series of drainages much closer to Wessington Springs. the Long Lake Game Production area is nearby. Should consult my DeLorme before I rely on my memory.

  6. larry kurtz 2023-03-21 11:25

    Yes, socialized agriculture, socialized dairies, socialized cheese, socialized livestock production, a socialized timber industry, socialized air service, socialized freight rail, a socialized nursing home industry, a socialized internet, socialized gas well remediation, a socialized water system and now socialized ethanol are all fine with Republicans in South Dakota but then they insist single-payer medical insurance is socialized medicine.

  7. larry kurtz 2023-03-21 14:27

    Things could be a lot worse — like having to live in Litchfield, Minnesota for instance.

Leave a Reply

Your email address will not be published.