There are lots of agricultural facts that you can take to the bank (feel free to add one of your own). Chickens lay eggs. Corn had its origin in a wild grass plant called teosinte. Brown cows have four legs and do not produce chocolate milk despite the opinion to the contrary of 16 million Americans. And oh yeah, concentrated animal feeding operations are known polluters who hate, hate, HATE, what they say are “frivolous lawsuits” filed by their geographical neighbors who can’t get drifting manure stench out of their laundry.
Generally speaking, CAFOs think just about any nuisance lawsuit where it’s a defendant is frivolous. In agriculture, things that can cause a nuisance can include such things as smells or noises from CAFOs that compromises comfort, safety and health of another party.
Agriculture is South Dakota’s largest industry and the state’s meat and poultry processing facilities generated $4.9 billion last year. Needless to say when CAFO’s complain about how tough they got it with frivolous lawsuits you can bet politicians are paying attention.
Hello South Dakota Gov. Kristi Noem and a merry band of statehouse Republicans who are scheming a doozy of a bill to put an end to nuisance lawsuits targeting CAFOs. House Bill 1090 inserts new language into the state’s current protections against animal nuisance claims:
- A nuisance action may not be filed against an agricultural operation unless the plaintiff is a legal possessor of the real property affected by the conditions alleged to be a nuisance, and the real property is located within one mile of the source of the activity or structure alleged to be a nuisance.
- An agricultural operation may not be held liable for nuisance unless the plaintiff proves by clear and convincing evidence that the claim arises out of conduct that did not comply with any county, municipal, state, or federal environmental laws or regulations.
The current burden of proof in South Dakota for nuisance claims is a “preponderance of the evidence” – a fairly low bar requiring a legal argument to be just slightly more convincing that that of the opponent. The new burden of proof standard requires “clear and convincing evidence.” The only legal standard higher is “beyond a reasonable doubt.”
Another amended section would limit recoverable damages if heaven forbid by some miracle a court found in favor of a plaintiff. For example, in the case of a permanent nuisance, a CAFO’s payout would truly be peanuts – based on the lost value of an affected property. How that is calculated is anyone’s guess, although Midwest Environmental Advocates reports homes within a quarter mile of a CAFO lose up to 88% of home and land value.
And, oh yeah, South Dakota also has a law that allows CAFOs to get back all the money spent defending themselves against nuisance lawsuits including attorney fees if a court rules the case frivolous.
It doesn’t take many brain cells to see what’s going on here. The proposed modifications to the law severely limits who can bring nuisance cases while at the same time eliminates punitive damages making it far less likely that lawsuits will be filed.
The South Dakota House passed the bill 61-9. The bill has been referred to the Senate Judiciary Committee and could be voted on later this week.
CAFO’s in other states are also being handed what amounts to get out of jail free cards. Last June in Iowa the state Supreme Court stunningly reversed a 2004 decision on Iowa’s right to farm law. The net effect will make it far tougher for landowners to sue CAFOs for damages. In 2020 the US Supreme Court in an Indiana case denied cert that challenged a state law giving CAFOs protection against nuisance lawsuits.
Truth be told the day is fast arriving when nuisance lawsuits against CAFOs will go the same way as the dodo bird. But it shouldn’t be all that surprising. Especially given that state governments across the nation are more than willing to do CAFO’s bidding while mostly ignoring their citizen’s ability to voice their concerns. That’s justice denied and it shouldn’t happen in a democracy.
About Dave Dickey
Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Investigate Midwest covers agriculture and related issues including politics, government, environment and labor. His opinions are his own and do not reflect Investigate Midwest. Email him at dave.dickey@investigatemidwest.org
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