PIERRE, S.D. (KELO) — The governor’s proposal increasing protections for South Dakota agriculture operations and processors from nuisance lawsuits is one step from final approval by the Legislature.

But several members of Governor Kristi Noem’s staff, as well as the head of her Department of Agriculture and Natural Resources, struggled at a hearing Thursday to answer questions about how its passage might affect legal rights of neighboring landowners.

The Senate Judiciary Committee voted 4-1 to endorse HB-1090. The full Senate could debate it as early as Tuesday afternoon.

A lineup of agricultural groups representing pork, soybean and dairy producers, cattlemen, Farm Bureau and cooperatives sent lobbyists to testify in favor of the changes. Opponents included the trial lawyers association, Dakota Rural Action and Izaak Walton League.

Much of the focus was on the level of evidence necessary for a civil lawsuit to succeed. The current standard is a preponderance. The bill would raise that to clear and compelling. That is one step below the criminal standard of beyond a reasonable doubt.

Lorin Pankratz, representing three agriculture organizations, compared the shift, in legislative terms, as going from a majority toward the higher requirement of two-thirds.

Steve Siegel, representing the South Dakota Association of Trial Lawyers, described that change as “not fair.”

Siegel also focused on another phrase. Current law says a facility can’t be sued if it’s been in operation for more than a year. The legislation keeps the same time period but changes operation to “existence.”

A producer or processor could make “a drastic change” overnight, Siegel said, but the neighboring landowner couldn’t sue.

Republican Sen. David Wheeler asked for an example of a valid nuisance claim. State Agriculture and Natural Resources Secretary Hunter Roberts tried to answer. “The big thing for the ag community is it limits the damage,” he said, before turning for help.

Alan Vester, the governor’s deputy legal counsel, said violating a local ordinance wouldn’t qualify. Megan Goltz, a policy advisor to the governor, joined the conversation and said it would have to be filed within the one year.

Wheeler turned back to Vester with a question: Sight and smell actions will be barred, unless you can show an environmental violation? “That is correct,” Vester replied. 

Wheeler, a lawyer, wasn’t convinced. “I’ll tell you – I don’t know,” he said during committee discussion. It seems like “a very drastic change,” he said. “Basically nuisance law would go away for ag operations.”

Republican Sen. Jim Mehlhaff called for the bill’s endorsement.

“I think there’s a reason for a law like this because frivolous lawsuits do happen in South Dakota,” he said.

Mehlhaff, who previously served on the Pierre city commission, said he was aware of people building houses in an airport runway zone and then complaining about planes flying too low. The same applies to agriculture, he said.

“I think there’s some reasons to raise the standard of evidence for that,” Mehlhaff said. “It can be very chilling to ag development, which is our biggest industry.”

He recalled as a youth smelling a livestock sale barn or feed lot: “My dad would say, that’s the smell of money.”