Ganje: CAFOs and Private Property Rights

David Ganje
Ganje Law Offices

In this opinion piece I discuss the legislature’s animal waste pipeline bill. The bill as written was untouched by human thought. During my short-lived career as a juvenile delinquent in Aberdeen my father had more than one occasion to tell me, “David we are seriously disappointed in you.” My dad was not familiar, one should assume, with the work of the South Dakota legislature. Otherwise he might have correctly used this reprimand to describe the legislature’s best law-drafting work.

When in high school I did not do my homework. The excuse was that I was not writing the laws of the state. The legislature (or the various special interests that influence them) write the laws of the state. With HB 1184 we have a case of no one doing his or her homework. The bill was about as substantive as a cheap 3.2 beer one might purchase at one of the old bars in Aberdeen.

HB 1184 was fortunately killed in committee. Be assured however another animal waste pipeline bill will return in the next legislative session dressed in different garb. One legislator has publically stated he will craft another bill with the same goal. If history is a guide, I suggest the promised new animal waste pipeline bill will have a good number of the same failings as the killed bill.

Label me naïve. But I shall never cease to be amazed how quickly property rights are cast into the dust bin of irrelevance when the American dollar makes its appearance. South Dakota’s economy needs livestock production. It is not the nature of CAFOS that is discussed in this piece. It is rather the extent to which legislators and others will go to tip the scales in favor of CAFO operations while disregarding both private property rights and the environmental impact of waste pipelines.

In the bill pipelines would be allowed on or under a road right-of-way which property is often private property. A property owner’s land may be taken, under proper circumstances, by the government for county or township purposes to make a road. When these rights-of-way are created other supplemental public rights may arise such as the right to hunt or fish on the right of way, but the property itself is still owned by the property owner. Creating a right-of-way does not take away the abutting owner’s title to the land. He pays taxes on that land, can hay it and so forth. This continued ownership is significant enough to be secured by the state constitution which provides that title to land taken for highways remains with the landowner. SD Const Art VI, § 13. Yet the bill would have a neighbor’s property available as a ‘public highway’ for another neighbor’s private business purposes all without compensation. Confined animal feedlot operations are not a public utility. A legislature should not convert a private business without any public benefit into a pseudo public utility.

What should interested parties look for in a future iteration of the animal waste pipeline bill? Let me further elaborate by looking at the bill that was not approved.

1. The language of the bill is short and incorporates itself by reference to another set of South Dakota laws. This is what I call a piggybacking law. The bill piggybacks onto the “UTILITY LINES ALONG AND ACROSS HIGHWAYS” law. This utility lines law is intended to apply to public utilities – not to apply to for-profit, private CAFOs. The bill would have allowed for condemnation proceedings without following the condemnation rules.

2. The “UTILITY LINES ALONG AND ACROSS HIGHWAYS” law does not provide by any stretch of the imagination a legal roadmap for overseeing aboveground or underground animal waste pipelines. This utility law is intended for use by electric utilities, telephone companies and the like. By way of illustration the law requires that any rule passed per its terms must comply with ‘applicable National Electrical Safety Code standards.’ What in the world does that have to do with overseeing animal waste pipelines? It should further be noted that any violation of this existing utility law is nothing more than a ‘petty offense.’

3. How can a private for-profit CAFO meet the definition of a public utility as described by the South Dakota Supreme Court?: A public utility is, “Any agency, instrumentality, business industry or service which is used or conducted in such manner as to affect the community at large, that is which is not limited or restricted to any particular class of the community.”

4. The law to which the bill piggybacks has never been challenged in court. It should be. It is unconstitutional. The South Dakota Supreme Court has previously ruled that a road, irrigation pipeline and electric cable laid across private property is a trespass because the operator failed to follow statutory procedures to acquire its easement. The Court said the action by the operator constituted a taking of private property without due process of law or just compensation. U.S. Const. amend. XIV, § 1; S.D. Const. art. VI, §§ 2, and 13.

5. Will new animal waste pipeline legislation address the environmental impacts of an operating pipeline? The bill did not. Why should environmental impacts be considered? For starters, a neighbor’s private property includes the land, the air above it and the earth below. Consider the fact that CAFOs often carry a commercial general liability policy. But since 1970 such policies do not include pollution or environmental spill coverage. For a discussion on the failures to properly insure for pollution events see: Without question an operator whose waste pipeline leaked damaging material onto another property owner’s land could be liable under the law of trespass or the law of nuisance. I submit nevertheless that if a county commission is going to grant by law a special business easement over another’s private property there should be environmental safeguards. Should not the statute require the maintenance of environmental pollution insurance? While there will be some unhappy clients to learn this — almost all CAFOs are uninsured for pollution losses. F