PIERRE, S.D. (KELO) — 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, according to the South Dakota Supreme Court.
In an opinion publicly released on Thursday, 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.
Justice Scott Myren wrote the new opinion, saying the current case presented the high court with the first opportunity to interpret the current version of the pesticide chapter’s requirements regarding damages. The justices returned the case to Judge Giles for further action.
The dispute involves two McCook County farmers with abutting properties. Nathan Schulz applied a chemical spray on his land that allegedly drifted and damaged Kevin Jucht’s soybeans. Jucht sued. Schulz asked for dismissal because Jucht hadn’t given him notice. Jucht argued that failing to give notice shouldn’t bar a claim.
Judge Giles granted the dismissal, because Jucht didn’t provide notice. Jucht appealed to the Supreme Court.
Justice Myren stated that whether or not Jucht gave notice wasn’t the standard for whether a claim could be made. Instead, it was whether Jucht had refused to allow Schulz the opportunity to check the alleged damage, as required by the next section of pesticide law.
“While SDCL 38-21-46 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,” Justice Myren wrote.
Justice Myren said there are questions that must be answered at the circuit court level. “Further proceedings will establish the nature and timing of the notice Schulz received regarding the
alleged damage and whether he was afforded the opportunity to exercise his statutory right under SDCL 38-21-47 to inspect the alleged damage,” he wrote.
