PIERRE, S.D. (KELO) — A divided South Dakota Supreme Court has ruled against a Spink County farmer who claimed that a crop sprayer during the fall of 2014 damaged and killed many of his ponderosa pine trees with a herbicide.
In a decision publicly released on Thursday, three of the court’s five justices agreed that the action brought by the estate of Arthur and Annette Olsen and their Pheasant Pun hunting operation should be dismissed.
Chief Justice Steven Jensen wrote the majority’s decision that found in favor of Agtegra Cooperative, South Dakota Wheat Growers Association, NCFE Air Huron and Heath Kretschmar. Chief Justice Jensen said the Olsens hadn’t proven their case because they provided no evidence regarding how and which trees had been damaged.
But, the chief justice added, Circuit Judge Tony Portra had erred in dismissing the Olsens’ claims that they had suffered trespass, statutory nuisance, and common law nuisance. The state’s high court ordered that those claims be further considered because they don’t require a showing of damage as an element of the claim.
“However,” he further noted, “because the Olsens have failed to present evidence as to causation for the claimed damages, any compensatory damages under these theories may be limited to nominal damages.”
The U.S. Supreme Court in a 2021 decision stated, “The prevailing rule at common law was that a party whose rights are invaded can always recover nominal damages without furnishing evidence of actual damage.”
Justice Janine Kern wrote a dissenting decision in the Olsens case. She was joined by Justice Patricia DeVaney. Justice Kern said that Judge Portra prematurely dismissed the case. She said it was a matter for the jury to decide.
“The ForeFront HL label warns that ponderosa pines are uniquely sensitive to and can be killed by this particular herbicide. The dead trees outline an area consistent with the alleged spray pattern. David (the couple’s son) was present by the ponderosa grove during the spraying, which was so thick that he ‘smelled the chemical on [his] person[] and could taste the chemical in [his] mouth,” Justice Kern stated. “In addition, the Defendants were unable to propose a plausible alternative theory of causation. When all signs point in the same direction, one hardly needs an expert navigator.”
