SD Supreme Court Overturns Dismissal of Pesticide Drift Ruling

 In an opinion released Thursday, the South Dakota Supreme court ruled unanimously that a judge incorrectly interpreted the current version of South Dakota’s laws on pesticide-overspray damages, when he dismissed a lawsuit brought by a neighboring landowner.

In an opinion authored by Justice Scott Myren, the justices unanimously decided that Circuit Judge Chris Giles erred when he relied on a 1982 decision by the Supreme Court on pesticide application laws. The Legislature has changed parts of those laws since then.

The dispute involves two farmers with abutting properties in McCook County. Nathan Schulz applied a chemical spray on his land that allegedly drifted and damaged Kevin Jucht’s soybeans. Jucht sued, and Schulz asked for dismissal because Jucht hadn’t given him notice. 

Judge Giles agreed and dismissed the suit.

Thursday’s opinion reads in part that South Dakota law “requires that the person claiming damage give notice of the alleged damage to the pesticide applicator, failure to provide such notice does not bar the claimant from bringing their claim.∗ Instead, a claimant is barred from seeking recovery under SDCL 38-21-47 when the claimant ‘fails to allow entry’ to the pesticide applicator to observe and inspect the alleged damage,” 

The case will be sent back to the Circuit Court.