Full opinion text
MEMORANDUM OPINION KORNMANN, District Judge. INTRODUCTION [¶ 1] Plaintiffs seek declaratory and in-junctive relief, challenging the constitutionality of the 1998 initiated amendments to Article XVII of the South Dakota Constitution, specifically Sections 21 through 24 (known as and hereinafter referred to as “Amendment E” because of its placement on the general election ballot when enacted by the voters of South Dakota). Amendment E in general prohibits limited liability business enterprises from acquiring real estate used for farming and from engaging in farming in South Dakota. Farming includes for the purposes of this action ranching as well. The specific claims are that the amendments are in violation of the United States Constitution, namely the Commerce Clause (more particularly the dormant Commerce Clause), the Equal Protection Clause, the Contracts Clause, the Supremacy Clause, and the Americans With Disabilities Act (“ADA”). This Court has jurisdiction over the subject matter and over the parties. See 28 U.S.C. § 1881. [¶ 2] Being called upon to decide whether certain provisions of the South Dakota Constitution violate the United States Constitution is a heavy burden and one the court does not relish or take lightly. Certain general principles of law must be applied in the necessary analysis. There is a strong presumption of constitutionality as to these provisions. Unless unconstitutional on its face, there must be a clear showing of arbitrariness and irrationality or clear conflict with the United States Constitution. Plaintiffs bear a heavy burden. There are legitimate state interests or purposes in seeking to prevent further concentrations of agricultural land and the production of food and animals from such land, seeking to prevent in the future agricultural land and production of animals and crops from passing into the hands of limited liability entities to the detriment of traditional family farm units and family farm limited liability entities primarily engaged in farming or ranching, and seeking to protect family life and values. South Dakota may make reasonable distinctions between business entities. Limited liability entities exist, if at all, by virtue of state laws permitting the use of such entities. States may decide legitimately to permit no limited liability entities. If Amendment E is susceptible of a reasonable interpretation which supports the constitutionality, the court must accord the measure that meaning. The court is not to adopt a strained, impractical, or absurd result, if possible. Federal judges are not, of course, “super legislatures.” Some of these general principles will be discussed later with appropriate references to legal authority. [¶ 3] § 21 of Article XVII of the South Dakota Constitution provides: No corporation or syndicate may acquire, or otherwise obtain an interest, whether legal, beneficial, or otherwise, in any real estate used for farming in this state, or engage in farming. The term, corporation, means any corporation organized under the laws of any state of the United States or any country. The term, syndicate, includes any limited partnership, limited liability partnership, business trust, or limited liability company organized under the laws of any state of the United States or any country. A syndicate does not include general partnerships, except general partnerships in which nonfamily (sic) farm syndicates or nonfamily (sic) farm corporations are partners. The term, farming, means the cultivation of land for the production of agricultural crops, fruit, or other horticultural products, or the ownership, keeping, or feeding of animals for the production of livestock or livestock products. [¶ 4] § 22 of Article XVII of the South Dakota Constitution provides: The restrictions in § 21 of Article XVII do not apply to: (1)A family farm corporation or syndicate. A family farm corporation or syndicate is a corporation or syndicate engaged in farming or the ownership of agricultural land, in which a majority of the partnership interests, shares, stock, or other ownership interests are held by members of a family or a trust created for the benefit of a member of that family. The term, family, means natural persons related to one another within the fourth degree of kinship according to civil law, or their spouses. At least one of the family members in a family farm corporation or syndicate shall reside on or be actively engaged in the day-to-day labor and management of the farm. Day-to-day labor and management shall require both daily or routine substantial physical exertion and administration. None of the corporation’s or syndicate’s partners, members, or stockholders may be nonresident aliens, or other corporations or syndicates, unless all of the stockholders, members, or partners of such entities are persons related within the fourth degree of kinship to the majority of partners, members, or stockholders in the family farm corporation or syndicate; (emphasis supplied) (2) Agricultural land acquired or leased, or livestock kept, fed or owned, by a cooperative organized under the laws of any state, if a majority of the shares or other interests of ownership in the cooperative are held by members in the cooperative who are natural persons actively engaged in the day-to-day labor and management of a farm, or family farm corporations or syndicates, and who either acquire from the cooperative, through purchase or otherwise, such livestock, or crops produced on such land, or deliver to the cooperative, through sale or otherwise, crops to be used in the keeping or feeding of such livestock; So a corporation may own real estate which is used for the keeping and feeding of livestock if the livestock so fed and kept on that real estate is owned by a qualified cooperative. (3) Nonprofit corporations organized under state nonprofit corporation law; (4) Agricultural land, which, as of the approval date of this amendment, is being farmed, or which is owned or leased, or in which there is a legal or beneficial interest, directly or indirectly . owned, acquired, or obtained by a corporation or syndicate, if such land or other interest is held in continuous ownership or under continuous lease by the same such corporation or syndicate. For the purposes of this exemption, land purchased on a contract signed as of the approval date of this amendment is considered as owned on that date; (5) Livestock, which as of the approval date of this amendment, is owned by a corporation or syndicate. For the purposes of this exemption, livestock to be produced under contract for a corporation or syndicate are considered as owned, if the contract is for the keeping or feeding of livestock and is signed as of the approval date of this amendment, and if the contract remains in effect and is not terminated by either party to the contract. This exemption does not extend beyond the term of any contract signed as of the approval date of this amendment; (6) A farm operated for research or experimental purposes, if any commercial sales from the farm are only incidental to the research or experimental objectives of the corporation or syndicate; (7) Land leases by alfalfa processors for the production of alfalfa; (8) Agricultural land operated for the purpose of growing seed, nursery plants, or sod; (9) Mineral rights on agricultural land; (10) Agricultural land acquired or leased by a corporation or syndicate for immediate or potential nonfann-ing (sic) purposes, for a period of five years from the date of purchase. A corporation or syndicate may hold such agricultural land in such acreage as may be necessary to its nonfarm (sic) business operation, but pending the development of the agricultural land for nonfarm (sic) purposes, such land may not be used for farming except under lease to a family farm corporation or family farm syndicate or a non syndicate or noncorporate (sic) farm; (11) Agricultural lands or livestock acquired by a corporation or syndicate by process of law in the collection of debts, or by any procedures for the enforcement of a lien, encumbrance, or claim thereon, whether created by mortgage or otherwise. Any lands so acquired shall be disposed of within a period of five years and may not be used for farming before being disposed of, except under a lease to a family farm corporation or syndicate, or a nonsyndicate (sic) or noncorporate (sic) farm. Any livestock so acquired shall be disposed of within six months; (12) Agricultural lands held by a state or nationally chartered bank as trustee for a person, corporation or syndicate that is otherwise exempt from the provisions of §§ 21 to 24, inclusive, of Article XVII; (13) A bona fide encumbrance taken for purposes of security; (14) Custom spraying, fertilizing, or harvesting; (15) Livestock futures contracts,' livestock purchased for slaughter within two weeks of the purchase date, or livestock purchased and resold within two weeks. [¶ 5] § 23 of Article XVII of the South Dakota Constitution provides: If a family farm corporation or family farm syndicate that has qualified under all the requirements of a family farm corporation or a family farm syndicate ceases to meet the defined criteria, it has twenty years, if the ownership of the majority of the stock of such corporation, or the majority of the ownership interest of such syndicate, continues to be held by persons related to one another within the fourth degree of kinship or their spouses, and their land holdings are not increased, to either requalify (sic) as a family farm corporation or family farm syndicate or dissolve and return to personal ownership. [¶ 6] § 24 of Article XVII of the South Dakota Constitution provides: Any corporation or syndicate that owns agricultural land or engages in farming is required to report information necessary for the enforcement of §§ 21 to 24, inclusive, of Article XVII to the secretary of state on an annual basis, under rules promulgated by the secretary pursuant to state law. The secretary of state shall monitor such reports and notify the attorney general of any possible violations, and any resident of the state may also notify the attorney general of any possible violations. If a corporation or syndicate violates any provision of §§ 21 to 24, inclusive, of Article XVII, the attorney general shall commence an action in circuit court to enjoin any pending illegal purchase of land or livestock, or to force divestiture of land or livestock held in violation of §§ 21 to 24, inclusive, of Article XVII. The court shall order any land held in violation of §§ 21 to 24, inclusive, of Article XVII to be divested within two years and any livestock to be divested within six months. If land so ordered by the court has not been divested within two years, the court shall declare the land escheated to the state. If the attorney general fails to bring an action in circuit court to enforce §§ 21 to 24, inclusive, of Article XVII, any resident of the state has standing in circuit court to sue for enforcement. [¶ 7] Having set forth the language of Amendment E, the court will now describe what the measure provides, what it does not provide, and what rules of law must be applied. The language used, almost without exception, is not ambiguous and therefore must be read and applied to the extent it is clearly written. This is not to say, as will hereinafter appear, that all portions of Amendment E are internally consistent. They are not. In fact, some provisions are hopelessly internally inconsistent and this complicates any reading and understanding of Amendment E. [¶ 8] “It is a basic rule of statutory interpretation ... that a statute which is clear and unambiguous on its face is not subject to construction.” Northwest Paper Co. v. Federal Power Commission, 344 F.2d 47, 50 (8th Cir.1965), (citing Blair v. City of Chicago, 201 U.S. 400, 26 S.Ct. 427, 50 L.Ed. 801 (1906); Kansas City, Missouri v. Federal Pacific Electric Co., 310 F.2d 271, 273, 274 (8 Cir.1962), and 2 Sutherland, Statutory Construction, 334 § 4702 (3rd Ed.1943)). “When the language of a statute is clear, certain, and unambiguous, there is no occasion for construction, and the court’s only function is to declare the meaning of the statute as clearly expressed in the statute.” American Meat Institute v. Barnett, 64 F.Supp.2d 906, 915 (D.S.D.1999), (quoting South Dakota Subsequent Injury Fund v. Casualty Reciprocal Exchange, 1999 SD 2, ¶ 17, 589 N.W.2d 206, 209 (1999)), (quoting Delano v. Petteys, 94 SDO 700, 520 N.W.2d 606, 608), (quoting in turn Petition of Famous Brands Inc., 347 N.W.2d at 884-85). The South Dakota Supreme Court has “repeatedly stated that when the terms of a statute are clear, certain and unambiguous in their meaning, it is the function of the court to give them effect and not to amend the statute to avoid or produce a particular result.” S.D.E.A. v. Barnett, 1998 SD 84, ¶ 57, 582 N.W.2d 386, 399 (Zinter, Judge, concurring in part, dissenting in part) (quoting Matter of Sales Tax Refund Applications, 298 N.W.2d 799, 802 (S.D.1980)). “ ‘Unless exceptional circumstances dictate otherwise,’ judicial inquiry into the meaning of a statute is complete once the Court finds that the terms of the statute are unambiguous.” S.D.E.A. v. Barnett, 1998 SD 84, ¶ 57, 582 N.W.2d 386, 399 (Zinter, Judge, concurring in part, dissenting in part) (quoting Burlington No. R. Co. v. Okla. Tax Comm’n, 481 U.S. 454, 461, 107 S.Ct. 1855, 1860, 95 L.Ed.2d 404, 412 (1987)). American Meat Institute v. Barnett, 64 F.Supp.2d at 915. Canons of statutory construction, when properly applied, are useful tools but are only aids to judicial interpretation which should not be applied when there is no ambiguity. United States v. Vig, 167 F.3d 443, 448 (8th Cir.1999). Unless exceptional circumstances dictate otherwise, when the terms of a statute are unambiguous, judicial inquiry is complete. See In re Erickson Partnership, 856 F.2d 1068, 1070 (8th Cir.1988). “We ask not what the Congress means; we ask only what the statute means.” United States v. Hepp, 656 F.2d 350, 353 (8th Cir.1981); see, e.g., Northern States Power Co. v. United States, 73 F.3d 764, 766 (8th Cir.1996) (stating that when “statutes are straightforward and clear, legislative history and policy arguments are at best interesting, at worst distracting and misleading, and in neither case authoritative”). United States v. Vig, 167 F.3d at 448. [¶ 9] In the present case, provisions that would normally be statutory have been written into the South Dakota Constitution. The rules set forth above and other rules of statutory construction apply to readings of language in a state constitution as well. See, e.g. State v. Neville, 346 N.W.2d 425, 428 (S.D.1984), In re Janklow, 530 N.W.2d 367, 370 (S.D.1995) (citing Levasseur v. Wheeldon, 79 S.D. 442, 112 N.W.2d 894 (S.D.1962)), and Cid v. South Dakota Dept. of Social Services, 1999 SD 108, 598 N.W.2d 887 (SD 1999). [¶ 10] Since it is clear that Amendment E is patterned to some extent from what was done in the Nebraska Constitution, the Nebraska provisions (upheld by the Nebraska Supreme Court and by the United States Court of Appeals for the Eighth Circuit but on much more narrow grounds than are presented here) will be compared with the South Dakota provisions as the court proceeds with the analysis. [I]t is an established rule of statutory construction that the adoption of a statute previously in force in some other jurisdiction is presumed to be the adoption of the interpretation thereof which had been theretofore placed upon it by the judicial tribunal whose duty it was to construe it. Black, Interpretation of Laws, p. 159, Sec. 70; McDonald v. Hovey, 110 U.S. 619, 628, 4 S.Ct. 142, 28 L.Ed. 269; Sanger v. Flow, 1 C.C.A. 56, 58, 48 F. 152, 154; Blaylock v. Incorporated Town of Muskogee, 54 C.C.A. 639, 117 F. 125. Harrill v. Davis, 168 F. 187, 198 (8th Cir.1909). This rule applies, of course, only to the extent that the South Dakota language tracks what was done in Nebraska and only to the extent that the language was interpreted as a matter of statutory construction. [¶ 11] Section 21 of Article XVII is very broad. It prohibits any corporation or syndicate from (1) acquiring or otherwise obtaining an interest, whether legal, beneficial, or otherwise, in any real estate used for farming in South Dakota, or (2) engaging in farming. These prohibitions are as broad as possible as to corporations and syndicates. [¶ 12] The court will analyze the first prohibition. Thus, “no corporation or syndicate” may, as to real estate “used for farming” in South Dakota (unless exempted by Section 22 of Article XVII) own it, lease it, acquire an easement, acquire an option, acquire a mineral interest, acquire a security interest or mortgage, acquire a statutory lien, acquire a contract for deed interest, become a beneficiary under a trust, or record a declaration of taking for purposes of eminent domain (SDCL 21-35 and SDCL 31-19). [¶ 13] A corporation is defined in Amendment E as “any corporation” organized under the laws of any state or any country. This clearly covers not only business corporations but, unless otherwise specifically exempted, municipal corporations, nonprofit corporations, foreign business corporations, business development corporations (SDCL Chapter 47-10), local industrial development corporations (SDCL 5-14-22 and 5-14-23), community development corporations (SDCL 51A-4-20 and 51A-4-20.1), medical corporations, medical service corporations, chiropractic corporations, optometrie corporations, po-diatrie corporations, physician’s assistants corporations, nursing corporations, dental corporations, veterinary corporations, health care corporations, professional corporations for the practice of law, professional corporations for the practice of public accounting, professional corporations for the practice of engineering, architecture, or surveying, and cemetery corporations. [¶ 14] We know that South Dakota, even when the legislature acts, has no legislative history to help guide courts. The intent of one or more members of the legislature is without legal significance in South Dakota. This includes the legislator or legislators who drafted or sponsored the legislation. Likewise, the intentions of the drafters of Amendment E or those who promoted it are without legal significance. It would be impossible, of course, to ascertain the intentions of the thousands of citizens of South Dakota who voted for Amendment E. We do not have here a factual scenario of elected delegates to a constitutional convention where a record is kept of all proceedings. [¶ 15] “Syndicate” is defined in Amendment E as including any limited partnership, limited liability partnership, business trust (and the court notes that a business trust was defined by SDCL 47-14-1 at the time Amendment E was adopted, which definition has been revised and significantly broadened effective July 1, 2001, by SDCL 47-14A-1 (1)), and limited liability company organized under the laws of any state or country. “Syndicate” also includes a general partnership if any partner is a non-family farm syndicate or non-family farm corporation. [¶ 16] Section 8(1) of the Nebraska Constitution is very similar to Section 21 of Article XVII of the South Dakota Constitution. There are some differences. The Nebraska language speaks of the prohibition covering the acquisition of or otherwise obtaining an interest “in any title” to real estate used for farming or ranching. South Dakota makes no reference to “any title” and no reference to “ranching.” These differences, however, are legally immaterial. [¶ 17] Nebraska, while also defining a syndicate, exempts from the definition of a syndicate a limited partnership in which the partners “are members of a family”. This is a rather broad exemption. South Dakota has no such exemption. All limited partnerships are banned, so to speak, in South Dakota unless exempted in Section 22 wherein there is an exemption but only if a limited partnership is first formed and a majority of the interests therein are held by members of a family (as defined as well in Section 22(1) of Article XVII) or a trust created for the benefit of a member of a family. In other words, a trust itself (standing alone, if you will, for the purpose of farming or owning agricultural land) is not exempt in South Dakota (unless exempted in Section 22) but may under certain circumstances be a member of a qualifying family farm corporation or a qualifying family farm syndicate. [¶ 18] In Section 8(1) (the “companion” to South Dakota’s Section 21), Nebraska exempts a “trust created for the benefit of a member of that family, related to one another within the fourth degree of kindred ... or their spouses, at least one of whom is a person residing on or actively engaged in the day to day labor and management of the farm or ranch, and none of whom are nonresident aliens. This shall not include general partnerships.” Thus, Nebraska permits general partnerships to own or otherwise acquire an interest in agricultural land and to engage in farming, the reason being that Nebraska does not include a general partnership in the definition of “syndicate.” South Dakota also does not include some general partnerships in the definition of “syndicate” but only if no partner in the general partnership is a non-family farm syndicate or non-family farm corporation. South Dakota in Section 21 speaks of a “business trust” whereas Nebraska in Section 8(1) speaks of a “trust.” [¶ 19] Turning to the second prohibition in Article 21, namely “engage in farming”, “farming” means the cultivation of land for the production of crops, fruit or other horticultural products. It also includes the ownership, keeping or feeding of animals for the production of livestock or livestock products. Again, this language is all very broad. The Nebraska language is equally broad. A question may arise whether a non-qualifying entity may own land enrolled in the federal conservation reserve program, subject perhaps to the ultimate requirement of divestiture if farming activities later commence on the real estate. We must remember that the Amendment E prohibition is as to “any real estate used for farming.” We must also remember that Amendment E defines “farming” as the “cultivation of land for the production of agricultural crops, fruit, or other horticultural products, or the ownership, keeping, or feeding of animals for the production of livestock or livestock products.” This question, however, will not be answered in this opinion since there is no need to do so. [¶ 20] Both states then specify certain exemptions. The South Dakota exemptions are found in Section 22. “Exemptions are based upon considerations of public policy. Constitutional and statutory provisions are to be given a reasonable, natural and practical construction to effectuate the purpose for which an exemption is created.” C.A. Wagner Const. Co. v. City of Sioux Falls, 71 S.D. 587, 27 N.W.2d 916, 920 (1947) (quoting from State ex rel. Eveland v. Erickson, 44 S.D. 63, 182 N.W. 315). This same language was later quoted in McFarland v. Keenan, 77 S.D. 39, 84 N.W.2d 884 (S.D.1957). [¶ 21] The first exemption (Section 22(1)) is a “family farm corporation or syndicate.” This describes an entity engaged in farming “or the ownership of agricultural land” in which a majority of the partnership interests, shares of stock or other ownership interests are held by “members of a family or a trust (and this would seem at this point of reading Section 22 to mean ‘any trust’) created for the benefit of a member of that family.” The language does not state “members of the same family.” It states “members of a family” and all persons are obviously members of “a family.” A reasonable reading of the language, however, is that “family” is used in the singular and members of different families would not qualify in deciding whether members of “a family” own a majority interest. The language “trust created for the benefit of a member of that family ” (emphasis supplied) also indicates that the correct interpretation is that members must be members of the same family under Amendment E. [¶ 22] Family farm corporations and syndicates are not exempted as to acquiring any interests other than “ownership” unless that entity is also engaged in farming. Family farm corporations, family farm limited partnerships, and family farm limited liability companies, just like all other corporations, are covered by Section 21 and none are exempted in Section 22(1) as to acquiring easements or as to acquiring any interest (other than outright ownership), whether legal, beneficial, or otherwise in any agricultural real estate unless that entity is also engaged in farming. A “family” is defined as consisting of people related to one another within the fourth degree of kinship according to civil law “or” their spouses. At least one of those family members doing business in a family farm corporation or syndicate must reside on the farm or “be actively engaged in the day-today labor and management of the farm.” As to both day-to-day labor and management functions, the family member must perform “both daily or routine (and there is obviously some ambiguity here since activity may well be routine without being on a daily basis) substantial physical exertion and administration.” As to such corporation or syndicate, no stockholder or member may be a non-resident alien. The term “non-resident alien” is not defined in Amendment E and may mean an alien who is a non-resident of South Dakota although a resident of some other state. It may also mean an alien who is a non-resident of the United States. By statute, an alien who is not a resident of South Dakota or some other state or territory of the United States may not own agricultural land of more than 160 acres, except such land as was received by devise or inheritance. See SDCL 43-2A-2. Any such alien who may acquire such lands by devise or descent has three years from acquiring title to dispose of the land. See SDCL 43-2A-3. Taking into account Section 14, Article VI. of the South Dakota Constitution (“No distinction shall ever be made by law between resident aliens and citizens, in reference to the possession, enjoyment or descent of property”) as well as decisions of the United States Supreme Court, the term “nonresident alien” as contained in Amendment E means an alien who is a non-resident of the United States. [¶ 23] No member or stockholder (of the family farm corporation or syndicate) may be another corporation or syndicate unless all the persons who own interests in that other corporation or other syndicate are all persons related within the fourth degree of kinship (there being no reference in this sentence to spouses) to the majority of the persons who own interests in the family farm corporation or syndicate itself. [¶ 24] The Nebraska first exemption is quite similar although it speaks of a family farm or ranch corporation; there is no reference to a ranch in the South Dakota provision. This is, however, legally immaterial since, as stated above, a ranch is covered by the definition of the term “farming” which relates back to the definition of real estate used for farming. The Nebraska first exemption deals only with family farm or ranch corporations and does not address syndicates. Nebraska provides that no corporation or partnership may be a stockholder in the farm or ranch corporation unless all the stockholders or partners of such entities are “persons related within the fourth degree of kindred to the majority of stockholders in the family farm corporation.” The Nebraska language is all one sentence. South Dakota has broken the language down to, in effect, five sentences in Section 22(1). [¶ 25] No mention is made in Section 21 of any cooperative being subject to the prohibitions. That is true in the Nebraska provision as well. A cooperative is not a corporation. No one, at least in South Dakota, calls a cooperative a corporation. No one calls a cooperative a syndicate. Even a comparison of Section 21 (where the reference is to a corporation) with Section 22(2) makes it clear that if a cooperative was indeed a corporation intended to be exempted by Section 22(2), the word “corporation” would have been used in the exemption. It is not. The word “corporation” is never mentioned in the exemption. [¶ 26] The South Dakota legislature has never presumed that a cooperative is the same thing as a corporation. See, e.g., SDCL 10-47B-3 (32) in which the definition of a “person” is said to include, inter alia, “a corporation” and “a cooperative.” Cooperatives in South Dakota are governed by SDCL Chapters 47-15 through 47-18 and by SDCL Chapter 47-20. Foreign cooperatives are governed by SDCL Chapter 47-19 and 47-20. Rural electric cooperatives are governed by SDCL 47-21. A cooperative receives very different treatment under federal laws than does a corporation. Cooperatives are, in general, pursuant to 26 U.S.C. § 501, exempt from federal income taxes, unlike the corporations sought to be reached by Amendment E. The corporations sought to be reached by Amendment E are, of course, not Sub-chapter “S” corporations. The very idea of a cooperative is an organization of members (not stockholders) entitled in some cases to distributions of earnings based upon patronage. In a corporation, a stockholder is not rewarded based upon the amount of business the stockholder does with the corporation. In fact, a corporation doing any substantial amount of business has no idea what business a stockholder may have conducted with the corporation. Obviously, the very broad prohibitions in Section 21 are not to be lightly or casually extended to cooperatives or to any other unmentioned entity. Nor is this court allowed to add entities or language to Section 21. [¶ 27] Amendment E sprang from South Dakota’s experiences with the statutory corporate farming restrictions found in SDCL Chapter 47-9A. SDCL 47-9A-2 (2) defines “corporation” or “any derivation of ‘corporation’” as including “both corporations under the South Dakota Business Corporation Act and limited liability companies under the South Dakota Limited Liability Company Act.” Governor William Janklow asked Attorney General Barnett for an official opinion as to whether the prohibitions in the corporate farming act apply to cooperatives. In Opinion No. 95-02 (not cited by any party in this case to the court), the Attorney General expressed his opinion to Governor Janklow that, even though a cooperative is defined at SDCL 47-15-1(2) as a “cooperative corporation”, a cooperative is exempt from the Family Farm Act. This court agrees with that opinion of the South Dakota Attorney General. [¶ 28] There are further clear reasons under South Dakota law why the word “corporation” does not include a “cooperative.” “Whenever the meaning of a word or phrase is defined in any statute such definition is applicable to the same word or phrase wherever it occurs except where a contrary intention plainly appears.” SDCL 2-14-4. SDCL 47-15-1(2) defines “[C]orporation as a corporation which is not a cooperative.” Section 21 of Article XVII also makes no mention of a “foreign cooperative” although we have a statutory-definition of “foreign cooperative” at SDCL 47-15-2(4). SDCL 47-15-14 permits any “corporation” to “convert itself into a cooperative ...” Likewise, any “cooperative” may “convert itself into a business corporation ...” by virtue of SDCL 47-2-4.1. Obviously, if one entity may become something else by taking certain legal steps, such an entity is not “something else” until it has “jumped through the legal hoops.” Finally, using any measure of common sense, any person on the street knows that a cooperative is not a corporation. If the people of South Dakota intended to include cooperatives and especially foreign cooperatives in the very broad prohibitions of Amendment E, they could have easily said so. They did not. [¶ 29] The second exemption in South Dakota (Section 22(2)) deals with certain cooperatives. This is a very curious exemption since, as already explained, cooperatives are not described or listed at all in the general prohibitions contained in Section 21. In other words, there is nothing to exempt. An example comes to mind. The first section of a particular law states, inter alia, that “no person” shall engage in certain activities. The next section of the law exempts “domestic animals.” Obviously, such an exemption would be meaningless. Since a cooperative is not a corporation, is not a syndicate, and is not covered by Section 21, the exemption is meaningless. There is not even a passing reference in Section 21 to cooperatives. The purported exemption as to cooperatives found in Section 22(2) extends only to agricultural land acquired or leased. Acquired means to own something. Lease means to lease something. The exemption does not state something to the effect of “agricultural land in which an interest has been acquired.” The exemption language does not at all track the very broad and extensive language of Section 21, namely to “acquire, or otherwise obtain an interest, whether legal, beneficial, or otherwise, in any real estate used for farming ...” The exemption is much more narrow and, if it has any purpose at all, does not exempt the acquiring of easements, options, or other possible interests in real property by cooperatives. In other words, if the exemption means anything, no cooperative may acquire any easement, any option in real estate, or any other possible interest in real estate in South Dakota. The exemption covers only ownership or leasing. Section 21 clearly distinguishes an acquisition (i.e.ownership) from acquiring some other non-ownership interest. If this exemption was held to be effective, it would only apply to cooperatives in which a majority of the shares or other interests are held by members of that cooperative which members are “natural persons actively engaged in the day-to-day labor and management of a farm, or family farm corporations or syndicates, and who either acquire from the cooperative, through purchase or otherwise, such livestock, or crops produced on such land, or deliver to the cooperative, through sale or otherwise, crops to be used in the keeping or feeding of such livestock.” The idea, based on the evidence at trial, which apparently drove this particular exemption (in the minds of one or more of the sponsors only) was to exclude from farming and from ownership of agricultural land in South Dakota the so-called regional or national cooperatives, i.e. cooperatives owned by local cooperatives, the regional cooperatives being such as Farmland Industries, Harvest States-Cenex, Land ‘0 Lakes, Inc., and perhaps others. Such cooperatives are not owned by farmers as such. The question arises, however: how can such entities be excluded from the cooperative exemption when no cooperative, whether “local” or “regional” was covered in the first place by Section 21? This purported exemption is particularly troubling since one cannon of statutory construction is that “legislative enactments should not be construed to render their provisions mere surplusage.” Dunn v. Commodity Futures Trading Com’n, 519 U.S. 465, 472, 117 S.Ct. 913, 917, 137 L.Ed.2d 93 (1997). This, cannon “is not an immutable physical law of the universe, but is simply a guide to statutory construction.” State Dept. of Assessments and Taxation v. Maryland Nat. Bank, 310 Md. 664, 672, 531 A.2d 294, 298 (1987). There is as well an ancient maxim, Surplu-sagium non nocet, i.e. surplusage does not harm. “If possible, effect should be given to every part and every word (emphasis supplied).” State ex rel. Oster v. Jorgenson, 136 N.W.2d 870, 875 (S.D.1965). It is not “possible” to give Section 22(2) any effect without first adding the word “cooperative” to Section 21 or finding that a “cooperative” is a “corporation”, there being no definition of “corporation” in Amendment E. As stated above, I decline to take either of such radical steps. The provisions of Section 22(2) are mere sur-plusage. In the alternative, the section is in conflict with the clear and unambiguous language of Section 21. To repeat: a “cooperative” is not a “corporation”, at least in South Dakota, and there is therefore nothing to exempt in Section 22(2). [¶ 30] The Nebraska Constitution has no such “cooperative exemption.” That, of course, is not surprising since, as already discussed, the Nebraska general prohibition (dealing with corporations) does not mention cooperatives and no cooperative of any kind is circumscribed by the constitutional provision in Nebraska. [¶ 31] South Dakota next exempts “Monprofit corporations organized under state nonprofit corporation law.” Does state mean South Dakota? One would assume so. Is the word “law” to be interpreted as plural, thus covering nonprofit corporations from all states? There is no need to determine any of this since no nonprofit corporation is a party. The Nebraska exemption simply states that the provisions do not apply to “[n]onprofit corporations.” [¶ 32] The next exemption in South Dakota (Section 22(4)) is commonly referred to as a “grandfather clause.” It is broadly written, much like Section 21. It allows non-family farm corporations and syndicates to do with agricultural land (other than raise livestock as will hereinafter appear) what they were doing on November 3, 1998, the date Amendment E became law. The broad exemption is for agricultural land which “is being farmed, or which is owned or leased, or in which there is a legal or beneficial interest, directly or indirectly owned, acquired, or obtained by a corporation or syndicate, if such land or other interest is held in continuous ownership or under continuous lease by the same such corporation or syndicate.” Thus, while the stockholders or the partners may change, the exemption continues. The exemption as to leased property is not perpetual since no lease of agricultural land for more than twenty years is valid in South Dakota. See SDCL 43-32-2. Language dealing with a contract for deed is included in the exemption although a contract for deed is obviously included in the phrase contained in the first sentence of this particular exemption, namely “a legal or beneficial interest.” The language dealing with a contract for deed is mere sur-plusage. [¶ 33] Nebraska’s “grandfather clause” is very similar although it, unlike South Dakota, allows for continuing ownership to meet the requirements of pollution control regulations. Nebraska also includes the surplus language as to a contract for deed. [¶ 34] The next exemption in South Dakota (Section 22(5)) is the livestock exemption. A non-family farm corporation or syndicate is permitted (1) to continue to own the livestock owned as of November 3, 1998, and (2) to continue to keep or feed livestock under contract as of November 3, 1998, until the contract expires or is terminated. Once any such contract expires or is terminated, the non-family farm corporation or syndicate may no longer acquire or keep and feed livestock. Unless a non-family farm corporation or syndicate had previously entered into a contract with some entity for the keeping and care of livestock, such entity is prohibited from acquiring or dealing with any new or replacement livestock after November 3, 1998. In other words, such entity could not replace the livestock as the livestock die, are sold or slaughtered. Thus, any such nonqualifying entity, even though it is permitted (by the terms of Amendment E) to continue to own pasture land owned as of November 3, 1998, could not acquire new or replacement livestock to be able to utilize the pasture land. Nor could the non-qualifying entity directly use any of its barns, sheds or shelters for livestock. Nebraska has no such provision. A further very significant problem for non-qualifying owners of pasture land is Article XVII, Section 7, of the South Dakota Constitution: “No corporation shall engage in any business other than that expressly authorized in its charter, nor shall it take or hold any real estate except such as may be necessary and proper for its legitimate business ” (emphasis supplied). Thus, not only may the non-qualifying entity not use its pasture land to raise livestock, the entity may not even continue to own the pasture land since it may not engage in farming. [¶ 35] The next exemption in South Dakota (Section 22(6)) is for a farm operated for research or experimental purposes but only if any commercial sales from the farm are “only incidental to the research or experimental objectives of the corporation or syndicate.” The Nebraska provision is basically the same. [¶ 36] Land leases by alfalfa processors for the production of alfalfa are exempted from Section 21 (Section 22(7)). Thus, any lease by a non-qualifying entity for the purpose of obtaining alfalfa to feed livestock is prohibited by Amendment E. The Nebraska provision is virtually identical. [¶ 37] There is an exemption for agricultural land operated for the purpose of growing seed, nursery plants, or sod (Section 22(8)). The Nebraska provision is identical. [¶ 38] Mineral rights on agricultural land (Section 22(9)), as in Nebraska, are exempted. [¶ 39] The next exemption (Section 22(10)) is for agricultural land “acquired or leased by a corporation or syndicate for immediate or potential nonfarming (sic) purposes, for a period of five years from the date of purchase.” It is clear that no non-qualifying entity having development in mind could own or lease the agricultural land for more than five years. When the five years has expired and the land is still agricultural land, the non-family corporation or syndicate would be in violation of Amendment E and would be required to dispose of the land or terminate the lease. During the five year period, the non-qualifying entity could not use the land for farming except by leasing it (either as the owner of the land or by virtue of a sublease of some kind) to a qualified family farm, whether that family farm is incorporated or not. This particular exemption is very narrow. It does track or match, for some unknown reasons, the broad prohibitions expressed in Section 21. In other words, the prohibition in Section 21 is much broader than the exemption in Section 22(11). The agricultural land must have been acquired, i.e. purchased and then owned, or leased from another entity. The exemption does not authorize easements, options to buy, or any other interest, whether legal, beneficial or otherwise. This means that utility companies such as the three electric utility companies who are parties plaintiff in this case, pipeline companies, municipal corporations wanting to install water lines or sewer lines under agricultural property, railroads, wind power companies, and similar entities could not acquire easements; they would be required to purchase or lease the corridor as well as the sites for towers, windmills and other structures. However, even with a purchase or lease of the corridor, such an entity could not hold such ownership or leasehold interest for more than five years unless, at the end of the five year period and thereafter, the land was not used for any agricultural purpose. [¶ 40] The language from the Nebraska Constitution is much the same as Section 22(10), although it refers also to “non-ranching (sic) purposes.” [¶ 41] The . next exemption (Section 22(11)) allows agricultural land and livestock to be acquired by a corporation or syndicate to enforce a lien or foreclose a security interest or mortgage. Again, the word acquired in this context clearly means to take ownership. The corporation or syndicate has five years to then dispose of the real estate and six months to dispose of the livestock. During the period that the real estate is held it may not be used for farming except under a lease to a family farm corporation, family farm syndicate, nonsyndicate (sic), or noncorporate (sic) farm. The exemption here does not deal with filing or obtaining any statutory hen but only with the enforcement of a hen and thus acquiring the land. It is clear that the exemption is not as broad as the language in Section 21, i.e. “acquire, or otherwise obtain an interest, whether legal, beneficial, or otherwise.” What any possible rationale there might be for this is unknown to the court. This exemption as written in Section 22(11) would permit the holder of a mechanic’s hen or other statutory hen in effect on November 3, 1998, to foreclose the hen. Because Section 22(11) authorizes the acquisition (Le.ownership) of agricultural land or livestock does not mean that the filing or recording of a hen is permitted. The exemption, however, must be read in conjunction with Section 22(13) which permits a “bona fide encumbrance taken for purposes of security”, language also taken verbatim from the Nebraska provision. [¶ 42] The Nebraska provision comparable to Section 22(10) is largely identical although no maximum holding period is specified for livestock so acquired. [¶ 43] The next exemption (Section 22(12)) allows state or nationally chartered banks (without specifying that the bank in question must have legally authorized trust powers and without taking into account that many banks in South Dakota do not have legally authorized trust powers) to act as trustees for persons, corporations or syndicates but only if such persons, corporations or syndicates are already exempt from Amendment E. This constitutional provision overrides certain provisions of the banking and trust company statutory scheme under South Dakota law. This trust exemption as to entities (individual farmers, family farm corporations and family farm syndicates) already not covered by Section 21 tells us that, in the absence of the exemption, no agricultural land (and the exemption does not cover livestock) could ever be placed in or continued in trust by any person or entity engaged in farming or owning agricultural land. Otherwise, there would be no purpose for the exemption. At first blush, a “business trust” (a named prohibited entity in Section 21) probably did not include a so-called living trust or a testamentary trust since “business trust” was rather narrowly defined in SDCL 47-14-1 when Amendment E was adopted. Since then, the definition has been substantially broadened by the South Dakota Legislature. See 47-14A-1. Thus, the ownership interests in a non-family farm syndicate or stock in a non-family farm corporation may not be placed in or continued in trust, either a so-called living trust or a testamentary trust, regardless of who is acting as trustee. The reason, of course, is that, if any such trust is a “business trust”, it is a syndicate pursuant to Section 21 and is prohibited from engaging in farming or owning any interests in agricultural real estate. It is also clear that no farmer or rancher (regardless of the manner in which the farmer or rancher is doing business) may place or retain agricultural land in trust with an individual trustee such as a surviving spouse or child. Livestock may not be placed or retained in trust in any type of trust, regardless of the type of trustee. Some existing trusts in the course of estate planning in South Dakota have been established as irrevocable trusts. One or more of the individual plaintiffs already have agricultural property, real and personal, in trust. [¶ 44] Trusts are commonly used to avoid probate, to save federal estate tax, and to allow the surviving spouse to receive all the income from the farm business enterprise with the farm business enterprise ultimately passing to a child or the children of the farm couple. Trusts holding agricultural real property and engaging in farming have been widely used for many years in South Dakota. Many farmers who established such a trust were already deceased when Amendment E came into being and probate courts had already ordered the establishment of the trusts and the transfers of property to the trusts from the decedents’ estates. In many cases, the surviving spouse is already acting as trustee. Others have drawn wills with pour-over provisions into such a trust. Others still alive have agricultural property already in trust. Having practiced law for 30 years and advised many farmer clients as to estate planning before taking office, I take judicial notice of these facts. As to all these trusts already established or in the process of probate (if a testamentary trust rather than a living trust was used) divestiture would be required by the provisions of Section 24, if Amendment E is constitutional. [¶ 45] There are further trust considerations. Section 21 tells us that the term corporation “means any corporation organized under the laws of any state of the United States or any country.” Section 21 does not tell us what syndicate “means.” It tells us that the term “includes” certain entities. It does not tell us that trusts, other than “business trusts”, are included or excluded. It tells us that “syndicate” does not include general partnerships “except general partnerships in which non-family (sic) farm syndicates or nonfamily (sic) farm corporations are members.” Again, it does not tell us that certain trusts are “not included” in the definition of a syndicate. [¶ 46] Nebraska has no such separate trust exemption provision, apparently because family trusts are specifically exempted by Section 8(1) of the Nebraska Constitution. [¶ 47] As already noted, there is an exemption (Section 22(13)) for a “bona fide encumbrance taken for purposes of security.” The quoted language was apparently copied from SDCL 47-9A-6 which language has not been interpreted by South Dakota courts. As already noted, Nebraska has an identical provision. This language, on a reasonable reading, authorizes the filing of a lien to acquire a mechanic’s lien and the acquisition of other statutory hens permitted by South Dakota laws. A more careful drafter would have simply exempted acts permitted by South Dakota law in connection with acquiring a mechanic’s lien or any other lien granted by South Dakota statutes. For example, we have a trucker’s lien for transporting livestock (SDCL 44-11-9), ambulance liens against agricultural real estate of the patient (SDCL 44-13-1) and the patient’s spouse (SDCL 44-13-3), crop liens (SDCL 38-17-1 to 38-17-19), possessory liens for trespassing livestock (SDCL Chapter 40-28), veterinarians’ vaccination liens (SDCL 4027-12, et seq.), liens in connection with the sale of livestock (SDCL 44-6-5), the vendor’s lien (SDCL 44-6-1) and the vend-ee’s lien (SDCL 44-6-2) against agricultural land, and perhaps other liens. The language used in the exemption could have been written in a more encompassing manner but will be read reasonably to permit an otherwise prohibited entity from acquiring these and other similar statutory liens. [¶ 48] There is an exemption (Section 22(14)) for custom spraying, fertilizing, or harvesting. Nebraska has identical exemptions. It was the court’s first thought that this language would obviate any concerns about a lien being acquired by operation of law as to these three activities, the thought being that Section 22(13) or, for that matter, Section 22(11), would not be sufficiently broad to cover such liens. It initially seemed odd to the court to refer to “custom spraying” and “fertilizing” other than the fact that the Nebraska exemption was copied. There are no South Dakota statutory liens for such activities. The concerns of the court initially related to a common rule of statutory construction, namely that once you start down a “laundry list”, confusion may be created. Section 22(14) is a very short “laundry list.” Under the maxim of construction known as expressio unius est exclusio alterius; the express mention in a statute of one thing implies the exclusion of other similar things. Black’s Law Dictionary 581 (6th Ed.1990). The court is now convinced, however, that the language in this exemption does not relate to statutory hens. Instead, it is designed to make it clear that custom spraying, fertilizing, or harvesting of crops do not constitute “farming”. The exemption matches, to some extent, SDCL 47-9A-2 (2) of the family farm act, where we are told that farming does not include “a contract whereby a processor or distributor of farm products or supplies provides spraying, harvesting or other farm services.” [¶49] In Section 22(15), Amendment E exempts livestock futures contracts, livestock purchased for slaughter within two weeks of the purchase date, “or” livestock purchased and resold within two weeks. Nebraska exempts livestock futures contracts, livestock purchased for slaughter (which is an exemption much broader than that of South Dakota), “or” livestock purchased and resold within two weeks. [¶ 50] Nebraska exempts “Nebraska Indian tribal corporations.” South Dakota has no such exemption. There are no provisions for Indian tribal corporations, as such, under South Dakota law. Tribes incorporate entities under general South Dakota law, either as a business corporation or as a non-profit corporation. Clearly, the State of South Dakota has no authority to regulate what the various tribes do in Indian Country in the use or ownership of agricultural land. [¶ 51] Nebraska exempts agricultural land operated by a corporation for the purpose of raising poultry. South Dakota has no such exemption. [¶ 52] As provided by Section 23, a family farm corporation or family farm syndicate that is qualified and later ceases to meet the requirements of Amendment E must be dissolved. However, if a majority of the stock in the non-qualifying corporation or the majority interests in the non-qualifying syndicate are held by persons related to one another within the fourth degree of kinship or their spouses, the non-qualifying entity may retain the land for twenty years but may not increase the land holdings. The Nebraska provision is virtually identical except the holding period is fifty years rather than twenty. [¶ 53] By virtue of Section 24, all corporations and syndicates owning agricultural land or engaging in farming are required to file an annual report. This includes all such corporations and syndicates, whether family farms or not. The Attorney General is mandated to bring lawsuits to “enjoin any pending illegal purchase of land or livestock.” This is a daunting task indeed to expect the Attorney General to know of all pending illegal purchases or acquisitions. The Attorney General is also mandated to bring lawsuits to force divestiture of land or livestock held in violation of Amendment E. State court judges are directed to order any land held in violation of Sections 21 through 24 to be divested in two years. If the court’s order to divest in two years is not accomplished, the court is directed to order that the land is to es-cheat to the state. One must assume that these provisions do not override the grace period extended by Section 23 as to non-qualifying entities (which were at one time qualified) to divest in twenty years. The state court judge is to order divestiture of livestock within six months. [¶ 54] Nebraska has a similar provision although the Nebraska Attorney General must have “reason to believe” that a violation is occurring before taking action. [¶ 55] Admittedly, the court could be criticized for discussing Amendment E language not directly impacting one or more of the present plaintiffs. I fully recognize that decisions should not be written in the manner of law review articles or advisory opinions. I have, however, already provided to the parties my thoughts on what Amendment E says; they are fully aware of that and at that point I had not made a decision as to what portions of the language would become important in the court’s decision. There is a further and more important reason: the court, as will hereinafter appear, is required to perform a balancing test, comparing putative local benefits of Amendment E with the burdens imposed on interstate commerce. DECISION I. Cooperatives [¶ 56] Plaintiff Donald Tesch (“Tesch”) owns a 1000 head hog confinement facility in South Dakota. He finishes hogs under a contract with Harvest States Cooperative, a regional cooperative. Harvest States provides Tesch with hogs weighing 40-65 pounds and he feeds them out to 240-265 pounds. Harvest States owns the hogs that Tesch feeds in his bams. If Tesch is required to own the animals that he feeds, he will require $350,000.00 to $450,000.00 each 18 week cycle to purchase the hogs. He has requested such financing from many banks; no bank has been willing to lend him money to buy his own hogs. [¶ 57] Tesch’s ten year contract with Harvest States expires in 2006. Because of Amendment E, Tesch has been notified by Harvest States that the contract cannot be renewed. Tesch comes before the court alleging that Amendment E may prohibit him from doing business (as he is now doing) with Harvest States. [¶ 58] Mr. Tesch and Farm Bureau members are entitled to an answer as to cooperatives, regardless of whether Amendment E violates the United States Constitution, and I will provide that answer. [¶ 59] Based on my previous discussion of whether or not cooperatives are included in Amendment E, it is clear that Tesch may continue to do business with a cooperative, local or regional, and that Amendment E does not prohibit what he has been doing and apparently intends to continue to do. Given this interpretation of the law, there is nothing to enjoin as to Tesch or South Dakota Farm Bureau on behalf of its members who are in similar circumstances as Tesch. II. ADA [¶ 60] The Eighth Circuit has held that private individuals can in fact sue state officials under the ADA for prospective, injunctive relief only. Grey v. Wilburn, 270 F.3d 607, 609 (8th Cir.2001). The Eighth Circuit held in Gibson v. Arkansas Department of Correction, 265 F.3d 718, 720 (8th Cir.2001) (quoting Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)): The Eleventh Amendment is not a bar to “federal jurisdiction over a suit against a state official when that suit seeks only prospective injunctive relief in order to ‘end a continuing violation of federal law.’ ” The foregoing principle is equally applicable to non-employment claims based on Title II of the ADA. Klingler v. Director, Dept. of Revenue, 281 F.3d 776, 776 (8th Cir.2002), and Randolph v. Rodgers, 253 F.3d 342, 347-48 (8th Cir.2001). [¶ 61] My prior order (which was not, of course, a final order) dismissing plaintiffs’ ADA claim, which was issued prior to Gibson and Grey, is in error and should be rescinded. [¶ 62] The allegations as to claims under the ADA in the original complaint are somewhat confusing and contradictory. It could be argued that only Farm Bureau has advanced such claims. “[F]or an association to have Article III standing to bring suit on behalf of its members, ‘the interests at stake must be germane to the organization’s purpose.’” Central South Dakota Co-op. Grazing Dist. v. Secretary of U.S. Dept. of Agriculture, 266 F.3d 889, 897 (8th Cir.2001) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Services, 528 U.S. 167, 181, 120 S.Ct. 693, 704, 145 L.Ed.2d 610 (2000)). There is no evidence in the record to support associational standing as to the ADA claims by Farm Bureau, perhaps because of the erroneous previous ruling made by the court. Farm Bureau, however, like the Farmers’ Union, broadly represents farmer members’ interests before legislative and other bodies on a routine basis. The court takes judicial notice of this. Representing the claims of presently “disabled farmers” who are members of Farm Bu