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In March, South Dakota’s governor signed House Bill 1090, which amended the state’s right-to-farm law. These changes mirror similar changes in North Carolina's changes to their right-to-farm law. These changes include clarifying when the operation gains the defense protections and who can bring a lawsuit and damages. You can view the amendments here.
2023 Changes to the State’s Law
The changes in South Dakota’s right-to-farm law mirror changes made in several states nationwide in recent years. The amendments to the state law first clarify when the court can assess costs against a neighbor bringing a nuisance suit against the operation. Based on the amendments, a neighbor can be assessed costs for the action when the court determines there was no reasonable ground or cause of action. For example, if the court determined that the neighbor complaining about a neighboring operation was without reasonable grounds, the court could assess the operation attorneys’ fees to defend against the lawsuit.
Next, the amendment clarifies that the operation benefits from the law after it has existed for one year. South Dakota’s law has a one-year statute of repose that is contained in many right-to-farm laws. The prior version specified that the “facility” had been operating for over a year. The amendment changes this to the “operation” being in existence for more than one year. This change clarifies that the defense applies to the whole operation, not individual facilities, as the facilities go online. Based on the changes, this would allow an operation to expand without resetting the one-year clock. At the same time, the amendments enable the operation to change the type of feeding operation or crops grown without the one-year clock resetting. For example, the operation could move from cattle to hogs without the one-year clock resetting, and the hog operation gains the right-to-farm defense without waiting one year.
The most significant changes include Sections 4 and 5 to the right-to-farm law. However, before we look at those sections, we should review two terms. Compensatory damages are actual damages or damages that equal what was lost by the plaintiff. Punitive damages are those awarded at the court’s discretion to punish a defendant.
New Section 4 will set compensatory damages awarded to a plaintiff (in a nuisance suit against an agricultural operation when the right-to-farm defense does not apply) based on the type of nuisance. For a permanent nuisance, plaintiffs can only get compensatory damages measured by the reduction in the fair market value of the plaintiff’s property caused by the nuisance. For example, if the operation is declared a permanent nuisance and reduces the plaintiff’s property value by $100,000. In this case, the plaintiff would only be entitled to $100,000 in compensatory damages.
For a temporary nuisance, the plaintiff would only be entitled to compensatory damages equal to the reduction in the property's fair rental value caused by the nuisance. For example, if the operation is declared a temporary nuisance in court and the decline in the fair rental value is $30,000 from the temporary nuisance. The plaintiffs would only be entitled to $30,000 in compensatory damages.
New Section 5 limits the amount of punitive damages awarded against an agricultural operation in a nuisance suit. Plaintiffs can only recover punitive damages when the nuisance action is based on substantially the same conduct. That conduct was subject to a civil enforcement judgment or criminal conviction taken by a municipal, county, state, or federal environmental agency. This conviction or judgment must occur within three years of the first action forming the basis of the nuisance action. New Section 5 will limit the availability of punitive damages.
With the additions of Sections 4 and 5, Section 6 has been added to clarify that those sections do not apply to lawsuits brought against an agricultural operation for negligence, trespass, personal injury, strict liability, or other tort claims other than nuisance. The two new sections would not limit the ability to request injunctive relief.
Section 7 has been added to limit who can file a nuisance complaint against an agricultural operation. The complaint would need to be filed by an owner or lessee of real property affected by the nuisance, and that property would need to be located within one mile of the activity or structure that is alleged to be a nuisance. Potential plaintiffs outside this one-mile radius would no longer have standing to bring nuisance claims. At the same time, those qualifying plaintiffs would need to present clear and convincing evidence that the conduct being complained about does not comply with a county, municipal, state, or federal law or regulation.
The revisions to the South Dakota right-to-farm law are just one of many we have seen post-North Carolina hog farm litigation. These changes tighten the right-to-farm defense and clarify who can bring a nuisance lawsuit against an agricultural operation.