South Dakota’s Right-to-Farm Summary

Proponents of the right-to-farm law in South Dakota have argued it protects the state’s agricultural legacy and resources.1 Since the first RTF law was passed in 1991, the number of farms in the state has dropped by 14 percent, with 4 percent fewer acres of farmland.2 So what does this legislation do in practice?

South Dakota’s RTF Law at a Glance

South Dakota’s RTF law does not explicitly protect farmers or farmland. Rather, South Dakota’s RTF law, similar to other such statutes nationally, centers on protecting commercial operations from nuisance lawsuits over matters like noise and pollution.3 Protections are not tied to farmers and ranchers as people or to land as acreage. Rather, commercial operations are defined as “any facility used in the production or processing for commercial purposes of crops, timber, livestock, swine, poultry, livestock products, swine products or poultry products.”4

Conditions and Activities

South Dakota’s RTF law affords commercial agriculture operations broad protections. Once an operation is protected, that status can be assignable, alienable, and inheritable—meaning the protections run with the operation.5 A facility can claim protected status if the locality around it changes once it has been in operation for a year, as long as it was not a nuisance at the time it began production.6 Similarly, an operation does not lose its protected status if it temporarily stops production or diminishes in size. The law allows operations to expand in acres or animal units without losing RTF protections if all county, municipal, state, and federal ordinances, laws, and regulations are met. Initially, for poultry or livestock operations to expand and still be protected through the RTF law, they had to prove that they could handle their additional waste in accordance with Department of Agriculture rules.7 However, in 1994, an amendment removed this stipulation.8 In addition, an operation that expands in acreage or livestock units will lose RTF protections if that expansion can be considered negligent or unreasonable or results in a violation of any county, municipal, state, or federal law.9

South Dakota’s statute does not protect operations from water-based lawsuits. Any agricultural operation, regardless of protected status, can be held liable for the damage it causes to another’s quality or quantity of water, including overflow.10

Local Governance

A South Dakota court found that townships do not have the authority to regulate the construction of commercial feedlots to abate a nuisance or other potential impacts.11 The RTF law was not directly at issue in the case. But the court noted that while the RTF law required compliance with county, municipal, state, and federal laws, “noticeably missing is any requirement that the agricultural operation comply with township codes, laws or regulations.”12 South Dakota’s law does not protect operations located within incorporated municipalities that predate January 1, 1991 (the date the state’s RTF law came into effect).13

Other Important Aspects

South Dakota has a unique provision that stipulates an agricultural operation can recover related court costs if it already existed within one mile of the plaintiff before a nuisance lawsuit was brought and there were no reasonable grounds for the lawsuit.14 An agricultural operation can also recover the money it spent defending itself if a court determines that the lawsuit was frivolous.15 This shifts the litigation risks away from agricultural operations (typically the defendant) and onto the plaintiff by potentially requiring the plaintiff to pay attorney fees, expert witness fees, and other costs related to preparing for and participating in the lawsuit.16

  • 1. Dickey Wagner, “Measures Have Different Implications for Agriculture,” Aberdeen (S.D.) American News, October 23, 2012. Also see state policy to protect agricultural operations from nuisance suits, S.D. Codified Laws § 21-10-25.1 (2021).
  • 2. U.S. Department of Commerce, “Table 1. Historical Highlights: 1992 and Earlier Census Years,” in 1992 Census of Agriculture, Volume 1: Geographic Area Series, Part 41: South Dakota State and County Data, Chapter 1: State Data (Washington, D.C.: U.S. Bureau of the Census, 1992),; “2021 State Agriculture Overview: South Dakota,” U.S. Department of Agriculture, National Agricultural Statistics Service, accessed October 21, 2022,
  • 3. S.D. Codified Laws §§ 21-10-15.1, 21-10-25.3 (2021).
  • 4. S.D. Codified Laws § 21-10-25.3 (2021).
  • 5. S.D. Codified Laws § 21-10-25.2 (2021).
  • 6. S.D. Codified Laws § 21-10-25.2 (2021).
  • 7. See, e.g., S.D. Codified Laws § 21-10-25.2 (1991).
  • 8. 1994 S.D. Sess. Laws 162 (S.B. 180) (amending S.D. Codified Laws § 21-10-25.2).
  • 9. S.D. Codified Laws § 21-10-25.2 (2021).
  • 10. S.D. Codified Laws § 21-10-25.4 (2021).
  • 11. Welsh v. Centerville Twp., 595 N.W.2d 622 (S.D. 1999).
  • 12. Welsh, 595 N.W.2d 622.
  • 13. S.D. Codified Laws § 21-10-25.5 (2021).
  • 14. S.D. Codified Laws § 21-10-25 (2021).
  • 15. S.D. Codified Laws § 21-10-25.6 (2021).
  • 16. Cordon M. Smart, “The ‘Right to Commit Nuisance’ in North Carolina: A Historical Analysis of the Right-to-Farm Act,” North Carolina Law Review 94, no. 6 (2016): 2097–154; Loka Ashwood, Danielle Diamond, and Fiona Walker, “Property Rights and Rural Justice: A Study of U.S. Right-to-Farm Laws,” Journal of Rural Studies 67 (April 2019): 120–29.