TITLE 38
AGRICULTURE AND HORTICULTURE
Chapter
01 State Department Of Agriculture And Natural Resources
02 Agricultural Experiment Stations [Transferred]
03 Agricultural Extension Services [Transferred]
04 Demonstration Farms [Repealed]
05 Agricultural Census And Statistics
06 Rural Rehabilitation Assets And Funds [Repealed And Transferred]
07 Division Of Resource Conservation And Forestry
07A Shelterbelts [Repealed]
08 Conservation Districts
08A Soil Erosion And Sediment Damage Control
09 Weather Modification Activities [Transferred]
10 Wheat Development And Promotion
11 State Seed Certification Board
12 Agricultural And Vegetable Seed Standards And Labeling [Repealed]
12A Seed Standards And Labeling
13 Hybrid Seed Corn [Repealed]
14 Discrimination In Purchase Of Grain And Flaxseed [Repealed]
14A Flax Research Fee [Repealed]
15 Potato Grades And Standards [Repealed]
16 Wholesale Potato Dealers [Repealed]
17 Crop Liens
18 Apiaries
19 Commercial Fertilizer
19A Soil Amendments
20 Pest Control Activities
20A Pesticides
21 Agricultural Pesticide Application
22 Weed And Pest Control
23 Horticulture [Repealed]
24 Nursery Stock And Plant-Pest Control [Repealed]
24A Plant Quarantine And Treatment
24B Nursery Stock And Plant Pest Control
25 Forestry [Transferred]
26 Forest Insect And Disease Control [Transferred]
27 Oilseeds Council And Assessments
28 Agricultural Grain Marketing [Repealed]
29 Soybean Research And Promotion Council
30 Honey Industry Commission [Repealed]
31 Devices For Measuring Moisture And Protein Content [Repealed]
32 Corn Utilization Council
33 Pork Commission
34 Pulse Crops
35 Industrial Hemp
CHAPTER 38-1
STATE DEPARTMENT OF AGRICULTURE AND NATURAL RESOURCES
38-1-1 Department continued--Office--Service of process--Seal.
38-1-1.1 Department continued--Performance of functions.
38-1-2 Secretary of agriculture and natural resources as head of department--Appointment.
38-1-3 Oath of secretary.
38-1-4 General duties of secretary.
38-1-5.1 38-1-5.1. Repealed by SL 2015, ch 204, § 2.
38-1-6 38-1-6 to 38-1-10. Superseded
38-1-11 Executive assistants--Oath.
38-1-12 Employment of inspectors and other employees.
38-1-13 Terms of office of executives and employees--Discharge--Salaries.
38-1-14 Traveling expenses of departmental personnel.
38-1-15 Secretary and executives devote entire time to office--Restrictions on holding of other office.
38-1-16 Promulgation of rules.
38-1-17 38-1-17. Repealed by SL 1982, ch 16, § 36
38-1-18 Promotion of agricultural interests--Experimental and extension work--Marketing of farm products.
38-1-18.1 Grants and donations for promotion of and service to agriculture--Deposit and expenditure of funds.
38-1-19 Collection and publication of agricultural and marketing statistics.
38-1-19.1 38-1-19.1 to 38-1-20.1. Repealed by SL 1982, ch 17, §§ 23 to 29
38-1-21 Department as bureau of statistics--Dissemination of information--Cooperation with other agencies.
38-1-22 38-1-22. Repealed by SL 1981, ch 11, § 5
38-1-23 38-1-23. Repealed by SL 2015, ch 204, § 3.
38-1-24 Publication of promotional materials--Exhibits.
38-1-25 38-1-25. Repealed by SL 1980, ch 268
38-1-26 Cooperation with State Fair Commission.
38-1-27 38-1-27, 38-1-28. Repealed by SL 2017, ch 180, §§ 4, 5.
38-1-29 Apiaries and bees.
38-1-30 Cooperation with commissioner of school and public lands in forest protection.
38-1-31 38-1-31. Repealed by SL 1981, ch 11, § 6
38-1-32 Regulation of nursery stock.
38-1-33 38-1-33, 38-1-34. Repealed by SL 2015, ch 204, §§ 4, 5.
38-1-35 38-1-35. Repealed by SL 1986, ch 326, § 5
38-1-36 Cooperation in protection of fish and game.
38-1-37 Cooperation and coordination with other departments--Preventing duplication of effort.
38-1-38 Representation of agricultural interests before federal agencies.
38-1-38.1 Principles of state before federal government.
38-1-39 38-1-39. Repealed by SL 1986, ch 326, § 6
38-1-40 Prosecution by secretary of violations--Security for costs not required.
38-1-41 38-1-41. Repealed by SL 1993, ch 311, § 8
38-1-42 Transferred to § 1-53-21 by SL 2019, ch 235 (Ex. Ord. 19-1), § 40, eff. Apr. 14, 2019.
38-1-43 Transferred to § 1-53-22 by SL 2019, ch 235 (Ex. Ord. 19-1), § 41, eff. Apr. 14, 2019.
38-1-44 Definition of terms.
38-1-45 Entry upon other's land to obtain samples--Prerequisites--Denial of access--Petition.
38-1-46 Request that secretary collect samples--Secretary's designee--Fee--Notice of sample taking.
38-1-47 Patent holder may seek protection order--Limitations.
38-1-48 Samples--Where taken.
38-1-49 Promulgation of rules.
38-1-50 Results to be sent to both parties by registered mail--Time.
38-1-51 Information received by secretary not public records.
38-1-1. Department continued--Office--Service of process--Seal.
The Department of Agriculture and Natural Resources of the State of South Dakota is continued with the powers, duties, and jurisdiction enumerated in this code. It shall maintain a central office in Pierre in rooms provided for the purpose, which shall be the official address of the department and the place for serving process or papers of any kind upon it. The department shall have an official seal.
Source: SL 1925, ch 115, ch I, art I, §§ 9, 10; SDC 1939, § 4.0101; SL 2013, ch 191, § 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-1-1.1. Department continued--Performance of functions.
The Department of Agriculture and Natural Resources shall continue as such and shall continue to perform its functions as provided in § 1-41-4, except for the inspection functions vested in the Department of Public Safety by §§ 34-39-3.1 and 39-1-1.1 and South Dakota Wildland Fire functions vested in the Department of Public Safety by Executive Reorganization Order 2021-03.
Source: SL 1973, ch 2, § 131; SL 2004, ch 17, § 277; SL 2021, ch 1 (Ex. Ord. 21-3), § 64, eff. Apr. 19, 2021.
38-1-2. Secretary of agriculture and natural resources as head of department--Appointment.
The head of the Department of Agriculture and Natural Resources shall be known as the secretary of agriculture and natural resources of the State of South Dakota, and wherever the word "secretary" appears in this title, it shall mean the "secretary of agriculture and natural resources of the State of South Dakota" unless the context indicates otherwise. The secretary shall be appointed by the Governor pursuant to S.D. Const., Art. IV, § 9 and to § 1-32-3.
Source: SL 1921, ch 190, § 1; SL 1925, ch 115, ch I, art I, §§ 2, 4; SDC 1939, § 4.0102; SL 1943, ch 3; SL 2021, ch 1 (Ex. Ord. 21-3), § 65, eff. Apr. 19, 2021.
38-1-3. Oath of secretary.
The secretary of agriculture and natural resources shall qualify by taking and filing the constitutional oath of office with the secretary of state.
Source: SL 1921, ch 190, § 1; SL 1925, ch 115, ch I, art I, § 6; SL 1933, ch 58; SDC 1939, § 4.0102; SL 1943, ch 3; SL 2015, ch 203, § 3; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-1-4. General duties of secretary.
The secretary of agriculture and natural resources, under the general direction and control of the Governor, shall execute the powers and discharge the duties vested by law in the Department of Agriculture and Natural Resources.
Source: SL 1921, ch 190, § 1; SL 1925, ch 115, ch I, art I, §§ 2, 3, 7; SL 1933, ch 59; SDC 1939, § 4.0102; SL 1943, ch 3; SL 1951, ch 298; SL 1953, ch 318; SL 1955, ch 224; SL 1957, ch 262; SL 1961, ch 260; SL 1965, ch 260; SL 1967, ch 239, § 1; SL 1969, ch 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-1-11. Executive assistants--Oath.
The secretary of agriculture and natural resources shall, with the advice and consent of the Governor, appoint executive assistants as may be authorized by law or as may be necessary to the efficient administration of the duties of the office. Each appointed executive assistant shall qualify by taking and filing the constitutional oath of office with the secretary of state.
Source: SDC 1939, § 4.0102; SL 1943, ch 3; SL 2015, ch 203, § 4; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-1-12. Employment of inspectors and other employees.
The secretary of agriculture and natural resources may, with the advice and consent of the Governor, employ such inspectors, deputies, clerical assistants, and other necessary employees as shall be necessary for the efficient and economical administration of the department and not inconsistent with the rules and regulations of the Bureau of Human Resources and Administration.
Source: SL 1921, ch 190, § 1; SL 1925, ch 115, ch III, art II, § 3; SDC 1939, § 4.0102; SL 1943, ch 3; SL 2012, ch 23, § 97; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021; SL 2024, ch 1 (Ex. Ord. 24-1), § 35, eff. Apr. 8, 2024.
38-1-13. Terms of office of executives and employees--Discharge--Salaries.
The terms of office or employment of executives, directors, inspectors, and other employees appointed or employed pursuant to § 38-1-11 or 38-1-12 shall be as prescribed by the secretary of agriculture and natural resources, and any of them may be discharged at any time without cause upon recommendation of the secretary and the approval of the Governor. Their salaries shall be as prescribed by law or, in the absence of such prescription, then as fixed by the secretary and approved by the Governor and subject to regulations of the Bureau of Human Resources and Administration.
Source: SL 1921, ch 190, § 1; SL 1925, ch 115, ch III, art II, § 3; SDC 1939, § 4.0102; SL 1943, ch 3; SL 2012, ch 23, § 98; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021; SL 2024, ch 1 (Ex. Ord. 24-1), § 35, eff. Apr. 8, 2024.
38-1-14. Traveling expenses of departmental personnel.
The officials and employees of the Department of Agriculture and Natural Resources shall be allowed their necessary and actual traveling expenses, board, and lodging incurred in performance of duty when absent from their office.
Source: SL 1907, ch 76, § 15; RC 1919, § 7937; SL 1925, ch 115, ch III, art II, § 2; SDC 1939, § 4.0102; SL 1943, ch 3; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-1-15. Secretary and executives devote entire time to office--Restrictions on holding of other office.
The secretary of agriculture and natural resources and all executive assistants and directors shall devote their entire time to the duties of the office and shall hold no other office or position of profit under the state government, but any of them may hold and administer any other office to which they may be appointed by the Governor, or head of their department with the consent of the Governor, but without additional compensation.
Source: SL 1925, ch 115, ch I, art I, § 5; SL 1931, ch 96, § 1; SDC 1939, § 4.0102; SL 1943, ch 3; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-1-16. Promulgation of rules.
The secretary of agriculture and natural resources may promulgate administrative rules, pursuant to chapter 1-26, concerning the administration of the department; the custody, use, and preservation of records, papers, books, property pertaining to the activities of the department; and fees for permits, inspection, and reinspection relating to any permits issued by the department.
Source: SL 1925, ch 115, ch I, art I, § 8; SDC 1939, § 4.0103; SL 1986, ch 326, § 4; SL 2013, ch 191, § 3; SL 2015, ch 203, § 5; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-1-18. Promotion of agricultural interests--Experimental and extension work--Marketing of farm products.
The Department of Agriculture and Natural Resources shall have power to encourage, protect, and promote, in every practical manner, the interests of agriculture, including horticulture, the livestock industry, dairying, cheese making, poultry, beekeeping, forestry, game and fish, the production of wool and all other allied industries; to promote methods of conducting these several industries, with a view of increasing the production and facilitating the distribution thereof at the least possible cost; cooperate with the South Dakota State University in its experimental and extension work; and to promote and encourage a system of marketing farm products, and cooperate with the federal government in the matter of securing new foreign markets for surplus farm products.
Source: SL 1925, ch 115, ch III, art I, § 2; SDC 1939, § 4.0104 (1); SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-1-18.1. Grants and donations for promotion of and service to agriculture--Deposit and expenditure of funds.
The secretary of agriculture and natural resources is hereby authorized to accept and receive grants, devises, bequests, donations, or gifts, in the form of money, for the purpose of establishing a fund to be used for the promotion of and provide service in agriculture.
All moneys received by the secretary of agriculture and natural resources under this section shall be deposited with the state treasurer and credited in a fund designated as "the Department of Agriculture and Natural Resources promotion fund." All moneys in said fund are hereby appropriated for the promotion of agriculture and to provide service in agriculture. Said fund shall be paid out on warrants drawn by the state auditor on vouchers approved by the secretary of agriculture and natural resources.
Source: SL 1970, ch 223; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-1-19. Collection and publication of agricultural and marketing statistics.
The Department of Agriculture and Natural Resources shall have power to collect and publish statistics relating to crop production, marketing and farm economics, the production and marketing of all farm products only so far as such statistical information may be of value to the agricultural and allied interests of the state; and to cooperate with the federal government, the South Dakota State University and agricultural organizations in the matter of collecting such statistical information. Such published statistics shall be the official agricultural statistics of the state.
Source: SL 1925, ch 115, ch III, art I, § 2; SDC 1939, § 4.0104 (4); SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-1-21. Department as bureau of statistics--Dissemination of information--Cooperation with other agencies.
The Department of Agriculture and Natural Resources shall also function as a bureau of statistics. It shall have authority to gather and disseminate timely information concerning the supply, demand, prices, and commercial movements of farm products including such as may be held in cold storage. It shall interchange such information with the United States Department of Agriculture and with various farm organizations, both state and local. It shall also cooperate with the secretary of revenue in compiling and distributing a complete list of all crop statistics.
Source: SL 1925, ch 115, ch III, art IV, §§ 2, 6; SDC 1939, § 4.0203; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-1-24. Publication of promotional materials--Exhibits.
The secretary of agriculture and natural resources shall prepare, publish, and distribute by mail and otherwise, documents, articles, and advertisements designed to convey information on all matters pertaining to the agricultural, industrial, mining, and other resources and advantages of the state. He may also prepare displays for exhibits of agriculture, horticulture, manufactured, and mineral products of the state.
Source: SL 1925, ch 115, ch III, art IV, § 7; SDC 1939, § 4.0204; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-1-26. Cooperation with State Fair Commission.
The Department of Agriculture and Natural Resources shall have power to cooperate with the State Fair Commission in furthering the agricultural interests of the state.
Source: SL 1925, ch 115, ch III, art I, § 2; SDC 1939, § 4.0104 (5); SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-1-29. Apiaries and bees.
The Department of Agriculture and Natural Resources shall have power to inspect apiaries and provide for the protection of bees.
Source: SL 1925, ch 115, ch III, art I, § 2; SDC 1939, § 4.0104 (10); SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-1-30. Cooperation with commissioner of school and public lands in forest protection.
The Department of Agriculture and Natural Resources shall have power to cooperate with the commissioner of school and public lands in protecting the forests of the State of South Dakota, and particularly in the matter of guarding against and preventing the devastation or destruction thereof by any insects, pests, or fires.
Source: SL 1925, ch 115, ch III, art I, § 2; SDC 1939, § 4.0104 (6); SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-1-32. Regulation of nursery stock.
The Department of Agriculture and Natural Resources shall have power to inspect and control the importation and sale of nursery stock.
Source: SL 1925, ch 115, ch III, art I, § 2; SDC 1939, § 4.0104 (9); SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-1-36. Cooperation in protection of fish and game.
The Department of Agriculture and Natural Resources shall have power to cooperate with the Department of Game, Fish and Parks of the State of South Dakota in the protection, preservation, propagation, and distribution of fish, game, and wild animals.
Source: SDC 1939, § 4.0104 (7); SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-1-37. Cooperation and coordination with other departments--Preventing duplication of effort.
The secretary of agriculture and natural resources shall furnish such cooperation, coordination, data, and information to other departments, subdivisions, or officers of the state government as may promote the most efficient administration of the state government as a whole and as may tend to prevent duplication of effort and expense in administration of such government, and he shall have the right to require the same for such purposes from other departments, subdivisions, or officers of the state government.
Source: SL 1925, ch 115, ch I, art I, §§ 12, 13; SDC 1939, § 4.0103; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-1-38. Representation of agricultural interests before federal agencies.
The secretary of agriculture and natural resources shall have power to arrange, subject to approval of the Governor, for representation before legislative and administrative agencies of the federal government, at such times as it seems advisable and in the manner deemed most advantageous to the state, for the purpose of obtaining federal legislation or administrative rulings helpful to the agricultural interests of the country, either individually or cooperatively with another state or other states with like interests, or in cooperation with agricultural organizations.
Source: SL 1921, ch 190, § 5; SDC 1939, § 4.0104 (12); SL 1978, ch 281, § 7; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-1-38.1. Principles of state before federal government.
The State of South Dakota, its agencies and representatives shall adhere to the following principles whenever representing the State of South Dakota before the United States Congress, the President, the United States Department of Agriculture, or any other federal agency in any matter concerning the cattle industry:
(1) Federal beef import quotas should be broadened to cover all classification of cattle, beef, and beef products;
(2) Federal beef import quotas should be correlated with domestic beef production so that beef imports will increase when domestic production is low and decrease when domestic production is high;
(3) The federal government should require all imported beef and beef products to be clearly labeled so as to identify the country of origin;
(4) No meat may be imported into this country unless it meets federal meat inspection standards;
(5) Federal health inspection of imported live cattle should be at least as stringent as the import health inspection of the exporting country;
(6) The federal government should vigorously enforce all existing statutes and treaty restrictions against unfair international trade practices, such as beef export subsidies, rebates, and production credits.
Source: SL 1979, ch 261, § 2.
38-1-40. Prosecution by secretary of violations--Security for costs not required.
The secretary of agriculture and natural resources may make complaint against any person violating any of the provisions of the laws he is empowered to enforce or administer, before any court having jurisdiction, and security for costs shall not be required of the complainant in any action or proceeding instituted by him or under his authority for the purpose of such enforcement, and it shall be the duty of all prosecuting officers of this state to prosecute all actions or proceedings instituted by the secretary of agriculture and natural resources.
Source: SL 1925, ch 115, ch III, art V, § 3; SDC 1939, § 4.0105; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-1-44. Definition of terms.
Terms used in §§ 38-1-44 to 38-1-50, inclusive mean:
(1) "Farmer," the person responsible for planting a crop on, managing the crop, and harvesting the crop from land on which a patent infringement is alleged to have occurred; and
(2) "Transgenic organism," an organism that has been modified by genetic engineering to contain DNA from an outside source.
Source: SL 2002, ch 188, § 1.
38-1-45. Entry upon other's land to obtain samples--Prerequisites--Denial of access--Petition.
Before a person holding a patent on transgenic seed may enter upon any land farmed by another for the purpose of obtaining crop samples to determine whether patent infringement has occurred, the person holding the patent:
(1) Shall notify the farmer in writing of the allegation that a patent infringement has occurred and request written permission to enter upon the farmer's land; and
(2) Shall obtain the written permission of the farmer.
The farmer shall grant or deny access within seven days of receipt of request to enter the land. If the farmer withholds written permission, the person holding a patent may petition the circuit court for an order granting permission to enter upon the farmer's land.
Source: SL 2002, ch 188, § 2.
38-1-46. Request that secretary collect samples--Secretary's designee--Fee--Notice of sample taking.
If either party requests the secretary of agriculture and natural resources to provide for the collection of samples under § 38-1-45, or to participate in or conduct any other aspect of the sampling or analysis process, the secretary shall designate an employee or enter into an agreement with a person or entity to implement the specified activity as provided in rules under § 38-1-49. The person or entity may be, but is not required to be, an employee or agency of the State of South Dakota. The patent holder shall pay the fee charged by the department under rules promulgated pursuant to § 38-1-49. The farmer and the person holding the patent may each be present at any collection of samples conducted under §§ 38-1-44 to 38-1-50, inclusive, and each shall be notified of the time and location of the sample taking in a timely manner.
Source: SL 2002, ch 188, § 3; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-1-47. Patent holder may seek protection order--Limitations.
If the person holding a patent believes that the crop from which samples are to be taken may be subject to intentional damage or destruction, the person may seek a protection order from the circuit court. The protection order may not interrupt or interfere with normal farming practices, including harvest and tillage.
Source: SL 2002, ch 188, § 4.
38-1-48. Samples--Where taken.
The samples may be taken from a standing crop, from representative standing plants in the field, or from crops remaining in the field after harvest.
Source: SL 2002, ch 188, § 5.
38-1-49. Promulgation of rules.
The secretary of agriculture and natural resources may promulgate rules, pursuant to chapter 1-26, to determine the following sampling protocols:
(1) To determine who is authorized to collect samples or conduct related activity;
(2) To determine methods of sample storage;
(3) To establish standards for sampling, inspecting, analyzing, and testing seeds; and
(4) To implement fees to recover sampling and related costs.
Source: SL 2002, ch 188, § 6; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-1-50. Results to be sent to both parties by registered mail--Time.
The results of any testing conducted under §§ 38-1-44 to 38-1-50, inclusive, shall be sent by registered letter to either party by the other within thirty days after the results are reported from the testing laboratory.
Source: SL 2002, ch 188, § 7.
38-1-51. Information received by secretary not public records.
Data or financial information made or received by the secretary of agriculture and natural resources for the purpose of application for loans, marketing assistance, agricultural finance counseling, and farm loan mediation are not public records and are exempt from the provisions of § 1-27-1.
Source: SL 1997, ch 224, § 1; SDCL § 38-6-12; SL 2019, ch 235 (Ex. Ord. 19-1), § 52, eff. Apr. 14, 2019; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-5-1
Agreements with federal government for annual census--Purpose.
38-5-2
Repealed.
38-5-3
Duties of other public officers and employees.
38-5-4 to 38-5-7. Repealed.
38-5-1. Agreements with federal government for annual census--Purpose.
The secretary of agriculture and natural resources of the State of South Dakota is hereby authorized and directed to enter into cooperative agreements with any officers or agencies of the federal government for the taking of annual agricultural censuses by the regularly appointed assessment officers and such other public officers and employees as may be designated for that purpose, for the purpose of obtaining information to be used by the federal government in the State of South Dakota and the allotment of benefits and other payments to farmers cooperating with the federal government, or for any other purpose whatever for which such information may be desired or required by any federal or state officer or agency.
Source: SL 1937, ch 17, § 1; SDC 1939, § 4.0601; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-5-3. Duties of other public officers and employees.
It shall be the duty of other public officers and employees within the state to comply with and perform all the duties imposed upon them or required by the provisions of cooperative agreements entered into pursuant to § 38-5-1 and the directions of the secretary of agriculture and natural resources.
Source: SL 1937, ch 17, § 2; SDC 1939, § 4.0602; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-6-1
Transferred.
38-6-2
Repealed.
38-6-3
Transferred.
38-6-4
Transferred.
38-6-5
Transferred.
38-6-6
Transferred.
38-6-7
Transferred.
38-6-8
Transferred.
38-6-8.1
Transferred.
38-6-9
Transferred.
38-6-10
Transferred.
38-6-11
Transferred.
38-6-12
Transferred.
38-6-13
Transferred.
38-6-14
Transferred.
38-6-15
Transferred.
38-6-16
Transferred.
CHAPTER 38-7
DIVISION OF RESOURCE CONSERVATION AND FORESTRY
38-7-1 Policy of state--Purposes of chapters 38-7 and 38-8.
38-7-2 Definitions.
38-7-2.1 Division of Resource Conservation and Forestry created.
38-7-2.2 Repealed.
38-7-2.3 Conservation districts--Department oversight.
38-7-3 State Conservation Commission established.
38-7-3.1 Commission administered by department--Functions retained by commission.
38-7-4 Composition of commission--Appointment and terms of members--Vacancies.
38-7-5 Conservation district supervisor member areas.
38-7-6 Nonvoting members of commission--Tenure of office.
38-7-7 Accommodations, supplies, and equipment for commission.
38-7-8 Record of commission actions--Seal--Powers.
38-7-9 Quorum of commission.
38-7-10 Chairman of commission--Delegation of powers and duties.
38-7-11 38-7-11. Repealed by SL 1971, ch 23, § 2
38-7-12 Employment of personnel by division--Legal services.
38-7-13 Record of proceedings kept by division.
38-7-14 Detail of personnel to division by other state agencies.
38-7-15 Assistance in carrying out of district programs.
38-7-16 Interchange of information between districts and division.
38-7-17 Coordination of district programs.
38-7-18 Assistance provided to districts by federal and state agencies.
38-7-19 Dissemination of information--Encouraging formation of districts.
38-7-20 Authority to represent districts--Develop conservation policy--Cooperate with public and private agencies.
38-7-21 Recommendations on programs of local, state, and federal agencies and subdivisions.
38-7-22 Provision of funds and assistance to districts.
38-7-23 Accounting and financial reporting procedures by districts.
38-7-24 Request to Legislature for appropriations.
38-7-25 Coordinated natural resources conservation fund created--Purposes.
38-7-26 Source of money in coordinated natural resources conservation fund.
38-7-27 Coordinated natural resources conservation program established--Promulgation of rules.
38-7-28 Administration of coordinated natural resources conservation program.
38-7-29 Natural resources conservation award--Program established--Eligibility--Selection.
38-7-30 Natural resources conservation award--Sign--Promulgation of rules.
38-7-1. Policy of state--Purposes of chapters 38-7 and 38-8.
It is declared to be the policy of this state, and within the scope of this chapter and chapter 38-8, to:
(1) Provide for conservation of the natural resources of this state;
(2) Provide for the control and prevention of soil erosion;
(3) Provide for the prevention of floodwater and sediment damages; and
(4) Provide for furthering the conservation, development, utilization, and disposal of water to:
(a) Preserve natural resources;
(b) Control floods;
(c) Prevent the impairment of dams and reservoirs;
(d) Assist in maintaining the navigability of rivers and harbors;
(e) Preserve wildlife habitat;
(f) Promote soil health principles and practices;
(g) Protect the tax base;
(h) Protect public lands; and
(i) Protect and promote the health, safety, and general welfare of the people of this state.
Source: SL 1937, ch 19, § 2; SDC 1939, § 4.1501; SL 1957, ch 4, § 1; SL 2024, ch 166, § 3.
38-7-2. Definitions.
Terms used in this chapter or chapter 38-8 mean:
(1) "Agency of this state," the government of this state and any subdivision, agency, or instrumentality, corporate or otherwise, of the government of this state;
(2) "Commission," the State Conservation Commission;
(3) "District" or "conservation district," a governmental subdivision of this state, and a public body, corporate and politic, organized in accordance with chapter 38-8, for the purpose, with the powers, and subject to the restrictions set forth in chapter 38-8;
(4) "Division," the Division of Resource Conservation and Forestry;
(5) "Due notice," a notice published at least twice, with an interval of at least seven days between the publication dates, in a legal newspaper within the district or by posting copies of the notice in three of the most public places within the district for a period of at least ten days immediately preceding the date specified in the notice. At any hearing held pursuant to the notice, at the time and place designated in the notice, the adjournment may be made from time to time without the necessity of renewing the notice for adjourned dates;
(6) "Government" or "governmental," the government of this state, the government of the United States, and any subdivision, agency, or instrumentality, corporate or otherwise, of either of them; and
(7) "Supervisor," one of the members of the governing body of a district, elected or appointed in accordance with chapter 38-8.
Source: SL 1937, ch 19, § 3; SDC 1939, § 4.1502; SL 1959, ch 3, § 1; SL 1964, ch 3; SL 2017, ch 181, § 6; SL 2018, ch 240, § 1; SL 2024, ch 166, § 4.
38-7-2.1. Division of Resource Conservation and Forestry created.
There is hereby created within the Department of Agriculture and Natural Resources created by chapter 1-41 a Division of Resource Conservation and Forestry.
Source: SL 1975, ch 23, § 1; SL 1995, ch 310 (Ex. Ord. 95-1), §§ 16, 17; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-7-2.2. Repealed.
Source: SL 1975, ch 23, § 2; SL 1981, ch 11, § 4; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021; SL 2024, ch 166, § 12.
38-7-2.3. Conservation districts--Department oversight.
Subject to § 38-7-3.1, the Department of Agriculture and Natural Resources shall perform the functions of the commission, as provided for in this chapter and chapter 38-8, relative to conservation districts.
Source: SL 1975, ch 23, § 3; SL 2024, ch 166, § 5.
38-7-3. State Conservation Commission established.
There is hereby established the State Conservation Commission.
Source: SL 1937, ch 19, § 4; SDC 1939, § 4.1503; SL 1945, ch 13; SL 1949, ch 10; SL 1957, ch 4, § 2; SL 1968, ch 1, § 2; SL 2024, ch 166, § 6.
38-7-3.1. Commission administered by department--Functions retained by commission.
The commission is administered by the Department of Agriculture and Natural Resources. The commission shall retain the quasi-judicial, quasi-legislative, advisory, other nonadministrative, and special budgetary functions, as defined in § 1-32-1, otherwise vested in it, and shall exercise those functions independently of the department.
Source: SL 1973, ch 2, § 104; SL 1975, ch 23, § 4; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021; SL 2024, ch 166, § 7.
38-7-4. Composition of commission--Appointment and terms of members--Vacancies.
The State Conservation Commission is composed of nine members appointed by the Governor. Eight members shall be appointed as follows: one member from a list of three names recommended to the Governor from the South Dakota Municipal League, from its membership to represent the urban interests; one member from a list of three names recommended to the Governor from the directors of the water development districts; two members who are engaged in the tree industry; and four members who are or have been conservation district supervisor members as designated in § 38-7-5. No more than five members may be from one political party. Each appointed member shall serve a three-year term. Each conservation district supervisor member shall be, or shall have been a supervisor of a conservation district. A member shall take office on the first day of January of the year following the member's appointment. Each appointment shall be made on or before the first day of December.
The Governor shall appoint the conservation district supervisor members from a list of names of qualified persons submitted to the Governor by the State Association of Conservation Districts. The association shall, at times consistent with the terms of this section and in a manner determined at its annual convention, submit a list of three nominees for each membership on the commission to be filled by appointment of the Governor.
Any vacancy arising from reasons other than the natural expiration of a term shall be filled for the unexpired term as in the case of original appointments.
Source: SDC 1939, § 4.1503 as added by SL 1949, ch 10; SL 1957, ch 4, § 2; SL 1968, ch 1, § 2; SL 1974, ch 254, § 2; SL 1975, ch 23, § 7; SL 1979, ch 354, § 33; SL 1981, ch 374, § 29; SL 1985, ch 306; SL 1989, ch 341; SL 2018, ch 240, § 2.
38-7-5. Conservation district supervisor member areas.
One conservation district supervisor member shall be at-large and one conservation district supervisor member from each of the three conservation district supervisor member areas shall be appointed to the commission. This state is divided into three conservation district supervisor member areas as follows: all of that area east of the Missouri River and north of the southern boundaries of Hughes, Hyde, Hand, Beadle, Kingsbury, and Brookings counties shall be known and designated as Area I; all of that area east of the Missouri River and south of the northern boundaries of Buffalo, Jerauld, Sanborn, Miner, Lake, and Moody counties shall be known and designated as Area II; and all of that area west of the Missouri River shall be known and designated as Area III.
Source: SDC 1939, § 4.1503 as added by SL 1957, ch 4, § 2; SL 1968, ch 1, § 2; SL 2018, ch 240, § 3.
38-7-6. Nonvoting members of commission--Tenure of office.
The following persons shall serve as nonvoting members of the State Conservation Commission: the director of the state extension service; the director of the state agricultural experiment station located at Brookings; the commissioner of school and public lands; the secretary of the Department of Game, Fish and Parks; and if approved by the United States secretary of agriculture, the state conservationist for the United States Natural Resources Conservation Service. A member of the commission shall hold office so long as the person retains the office by virtue of which the person is serving on the commission.
Source: SL 1937, ch 19, § 4; SDC 1939, §§ 4.1503, 4.1504; SL 1945, ch 13; SL 1949, ch 10; SL 1957, ch 4, § 2; SL 1963, ch 6; SL 1968, ch 1, §§ 2, 3; SL 1974, ch 254, § 3; SL 2015, ch 203, § 6; SL 2021, ch 1 (Ex. Ord. 21-3), § 66, eff. Apr. 19, 2021.
38-7-7. Accommodations, supplies, and equipment for commission.
The State Conservation Commission shall be supplied with suitable accommodations at the seat of the state government, and shall be furnished with the necessary supplies and equipment.
Source: SL 1937, ch 19, § 4; SDC 1939, § 4.1505; SL 1959, ch 3, § 2.
38-7-8. Record of commission actions--Seal--Powers.
The State Conservation Commission shall keep a record of its official actions; shall adopt a seal, which seal shall be judicially noticed; and may perform acts, hold hearings, and promulgate rules, pursuant to chapter 1-26, concerning:
(1) The organization and operation of the commission;
(2) Cooperation and assistance provided to conservation districts;
(3) The reporting of election results and financial affairs of the conservation districts; and
(4) The governing and administration of conservation district elections.
Source: SL 1937, ch 19, § 4; SDC 1939, § 4.1503; SL 1945, ch 13; SL 1949, ch 10; SL 1957, ch 4, § 2; SL 1968, ch 1, § 2; SL 1974, ch 254, § 4; SL 1986, ch 326, § 8; SL 2015, ch 203, § 7.
38-7-9. Quorum of commission.
A majority of the State Conservation Commission shall constitute a quorum, and the concurrence of a majority in any matter within their duties shall be required for its determination.
Source: SL 1937, ch 19, § 4; SDC 1939, § 4.1504; SL 1963, ch 6; SL 1968, ch 1, § 3.
38-7-10. Chairman of commission--Delegation of powers and duties.
The State Conservation Commission shall designate its chairman annually. It shall have authority to delegate to its chairman, to one or more of its members, or to one or more agents or employees, such powers and duties as it may deem proper.
Source: SL 1937, ch 19, § 4; SDC 1939, §§ 4.1504, 4.1505; SL 1959, ch 3, § 2; SL 1963, ch 6; SL 1968, ch 1, § 3.
38-7-12. Employment of personnel by division--Legal services.
The Division of Resource Conservation and Forestry may employ such agents and employees, permanent and temporary, as it may require and shall determine their qualifications, duties, and compensation. The division may call upon the attorney general of the state for such legal services as it may require.
Source: SL 1937, ch 19, § 4; SDC 1939, § 4.1505; SL 1959, ch 3, § 2.
38-7-13. Record of proceedings kept by division.
The Division of Resource Conservation and Forestry shall keep full and accurate records of all proceedings and of all resolutions, rules, and regulations, and orders issued or adopted.
Source: SL 1937, ch 19, § 4; SDC 1939, § 4.1504; SL 1963, ch 6; SL 1968, ch 1, § 3; SL 1975, ch 247, § 1; SL 1982, ch 15, § 7.
38-7-14. Detail of personnel to division by other state agencies.
Upon request of the Division of Resource Conservation and Forestry for the purpose of carrying out any of its functions, the supervising officer of any state agency, or any state institution of learning shall, insofar as may be possible under available appropriations, and having due regard to the needs of the agency to which the request is directed, assign or detail to the division, members of the staff or personnel of such agency or institution of learning, and making such special reports, surveys, or studies as the division may request.
Source: SL 1937, ch 19, § 4; SDC 1939, § 4.1505; SL 1959, ch 3, § 2.
38-7-15. Assistance in carrying out of district programs.
In addition to the duties and powers conferred upon the Division of Resource Conservation and Forestry in chapter 38-8, it shall have the duty and power to offer such assistance as may be appropriate to the supervisors of conservation districts, organized as provided in chapter 38-8, in the carrying out of any of their powers and programs.
Source: SL 1937, ch 19, § 4; SDC 1939, § 4.1506 (1).
38-7-16. Interchange of information between districts and division.
In addition to the duties and powers conferred upon the Division of Resource Conservation and Forestry in chapter 38-8, it shall have the duty and power to keep the supervisors of each of the several districts organized under the provisions of chapter 38-8 informed of the activities and experience of all other districts organized thereunder, and to facilitate an interchange of advice and experience between such districts and cooperation between them.
Source: SL 1937, ch 19, § 4; SDC 1939, § 4.1506 (2).
38-7-17. Coordination of district programs.
The Department of Agriculture and Natural Resources may coordinate the programs of conservation districts, so far as this may be done by advice and consultation.
Source: SL 1937, ch 19, § 4; SDC 1939, § 4.1506 (3); SL 2024, ch 166, § 8.
38-7-18. Assistance provided to districts by federal and state agencies.
In addition to the duties and powers conferred upon the Division of Resource Conservation and Forestry in chapter 38-8, it shall have the duty and power to secure the cooperation and assistance of the United States and any of its agencies, and of agencies of this state, in the work of the several conservation districts.
Source: SL 1937, ch 19, § 4; SDC 1939, § 4.1506 (4).
38-7-19. Dissemination of information--Encouraging formation of districts.
In addition to the duties and powers conferred upon the Division of Resource Conservation and Forestry in chapter 38-8, it shall have the duty and power to disseminate information throughout the state concerning the activities and programs of the conservation districts organized under chapter 38-8, and to encourage the formation of such districts in areas where their organization is desirable.
Source: SL 1937, ch 19, § 4; SDC 1939, § 4.1506 (5).
38-7-20. Authority to represent districts--Develop conservation policy--Cooperate with public and private agencies.
The Department of Agriculture and Natural Resources may represent the conservation districts and develop and implement policy for natural resources conservation and development. The department may cooperate at all levels of government, with all agencies, public and private, in the conservation and development of all renewable natural resources.
Source: SDC 1939, § 4.1506 as added by SL 1968, ch 1, § 4; SL 2024, ch 166, § 9.
38-7-21. Recommendations on programs of local, state, and federal agencies and subdivisions.
In addition to the duties and powers conferred upon the State Conservation Commission in chapter 38-8, it shall have the duty and power to review and make recommendations within its discretion, in cooperation and consultation with affected districts, on all natural resource development programs proposed or planned by local, state, and federal agencies and subdivisions.
Source: SDC 1939, § 4.1506 as added by SL 1968, ch 1, § 4.
38-7-22. Provision of funds and assistance to districts.
In addition to the duties and powers conferred upon the Division of Resource Conservation and Forestry, it shall have the duty and power to provide funds, grants, supplies, and staff assistance to conservation districts and to assist such districts in obtaining technical planning guidance from the State Planning Commission, and other state and federal agencies.
Source: SDC 1939, § 4.1506 as added by SL 1968, ch 1, § 4.
38-7-23. Accounting and financial reporting procedures by districts.
In addition to the duties and powers conferred upon the Division of Resource Conservation and Forestry, it shall have the duty and power to require proper accounting and financial reporting procedures by conservation districts and to assist in the implementation of these procedures.
Source: SDC 1939, § 4.1506 as added by SL 1968, ch 1, § 4; SL 1975, ch 247, § 2.
38-7-24. Request to Legislature for appropriations.
To accomplish the purposes of the State Conservation Commission and the conservation districts as provided in this chapter and chapter 38-8, the Division of Resource Conservation and Forestry may present requests to the State Legislature for appropriations adequate to carry out the duties and responsibilities of it and the State Conservation Commission and the districts.
Source: SDC 1939, § 4.1506 as added by SL 1968, ch 1, § 4.
38-7-25. Coordinated natural resources conservation fund created--Purposes.
There is hereby created a special fund known as the coordinated natural resources conservation fund. All money in the coordinated natural resources conservation fund is dedicated for the purposes identified in the South Dakota coordinated natural resources plan. Interest earned on money in the fund shall be deposited in the fund.
Source: SL 1992, ch 100, § 5; SL 1994, ch 313, § 1; SL 2007, ch 227, § 1.
38-7-26. Source of money in coordinated natural resources conservation fund.
The coordinated natural resources conservation fund consists of money transferred from the sale of motor fuel for nonhighway agricultural uses in the motor fuel tax fund as provided in § 10-47B-149, and all public and private sources including legislative appropriations or federal grants.
Source: SL 1992, ch 100, § 6; SL 1994, ch 313, § 2; SL 2007, ch 227, § 2; SL 2011, ch 61, § 8.
38-7-27. Coordinated natural resources conservation program established--Promulgation of rules.
The coordinated natural resources conservation program is hereby established. Under this program, the State Conservation Commission may grant funds from the coordinated natural resources conservation fund. The Conservation Commission shall promulgate rules pursuant to chapter 1-26 for administration, terms, and conditions for the disbursement of grants to conservation districts and to establish criteria for the selection of projects to receive grants through the coordinated natural resources conservation program.
Source: SL 1992, ch 100, § 7; SL 1994, ch 313, § 4; SL 2007, ch 227, § 3.
38-7-28. Administration of coordinated natural resources conservation program.
The Division of Resource Conservation and Forestry of the Department of Agriculture and Natural Resources shall implement and administer the coordinated natural resources conservation program. Expenses associated with administration of this program and other purposes as authorized by chapter 38-7 and chapter 38-8 shall be expended from the coordinated natural resources conservation fund as determined in the general appropriations act according to Title 4.
Source: SL 1994, ch 313, § 5; SL 2007, ch 227, § 4; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-7-29. Natural resources conservation award--Program established--Eligibility--Selection.
The South Dakota natural resources conservation award program is hereby established. Under the program, each conservation district may annually select no more than five residents of the district to receive a natural resources conservation award.
To be eligible for an award, a person must be directly and actively engaged in agricultural production in this state.
In selecting award recipients, the district may consult with the commission and other relevant entities.
Awards must be based upon the recipient's contribution to the preservation and conservation of natural resources in this state, in conjunction with the recipient's agricultural operations.
Source: SL 2008, ch 207, § 1; SL 2024, ch 166, § 10.
38-7-30. Natural resources conservation award--Sign--Promulgation of rules.
Each recipient shall receive a sign displaying the words "South Dakota Natural Resources Conservation Award" and "Award Winning Soil Conservation Farm," and the year of the award. The commission shall promulgate rules, pursuant to chapter 1-26, governing the natural resources conservation award program. The rules must include:
(1) Criteria for selecting award recipients in accordance with the requirements of § 38-7-29 and this section, which must include efforts to maintain grass waterways and eliminate the cultivation of waterways; terracing; crop rotation; leaving crop residue after harvesting; and utilizing no-till farming;
(2) Procedures for nominating and selecting award recipients;
(3) Procedures to publicize and raise awareness of the need for natural resources conservation practices, as outlined in subdivision (1) of this section; and
(4) Other procedures necessary for the administration of the award program.
Source: SL 2008, ch 207, § 2; SL 2024, ch 166, § 11.
38-7A-1
Repealed.
38-7A-2 to 38-7A-7. Repealed.
CHAPTER 38-8
CONSERVATION DISTRICTS
38-8-1 Filing of petition for organization of district--Number of signers--Contents--Consolidation of petitions.
38-8-2 Notice and hearing on petition for organization of district--Questions considered--Right to be heard--Hearing on inclusion of additional territory.
38-8-3 Factors considered in hearing on petition for organization of district.
38-8-4 Determination of need for district--Establishment of boundaries.
38-8-5 Determination of no need and denial of petition--Time for filing new petitions.
38-8-6 Consideration of administrative practicability and feasibility of district.
38-8-7 Referendum on creation of district--Form of ballot--Right to vote.
38-8-8 Timing of referendum on creation of district.
38-8-9 Conduct of election on creation of district--Certification of results.
38-8-10 Notices and conduct of hearings and referenda--Procedural regulations--Referendum not invalidated by informalities.
38-8-11 Vote required to authorize creation of district--Extent of participation in voting required.
38-8-12 Publication of referendum results--Determination and recording of administrative practicability and feasibility.
38-8-13 Factors considered in determining administrative practicability and feasibility.
38-8-14 Time for filing new petitions after denial of district.
38-8-15 Election of initial supervisors--District as governmental subdivision.
38-8-16 Application filed with secretary of state by elected supervisors--Contents--Accompanying statement by commission.
38-8-17 Filing and recording of application and statement--Issuance of certificate of organization.
38-8-18 Certificate of organization as proof of establishment of district.
38-8-19 Petition for inclusion of additional territory--Procedure.
38-8-20 Inclusion of additional territory by amendment of charter--Notice and hearing.
38-8-21 Resolution to include additional territory--Effective date.
38-8-22 Petition for combination or division of districts--Number of signers--Form.
38-8-22.1 Governing board resolution for combination or division of districts--Vote at general election.
38-8-23 Commission hearing on combination or division of districts.
38-8-24 Determination of administrative practicability and feasibility of combining districts.
38-8-24.1 Petition for referendum on organization of district--Commission action on petition.
38-8-25 Appointment of supervisors for reorganized district.
38-8-26 Certificates of organization for new districts--Certificate of dissolution--Assets and liabilities revert to new district.
38-8-27 38-8-27 to 38-8-29. Repealed by SL 1968, ch 1, § 13.
38-8-30 Petition for boundary adjustment between adjoining districts.
38-8-31 Notice and hearing on boundary adjustment between districts.
38-8-32 Determination of administrative practicability and feasibility of boundary adjustments--Factors considered--Notice to districts.
38-8-33 Application to secretary of state for certificate evidencing boundary changes--Accompanying statement by state commission--Issuance of certificate.
38-8-34 Petition for change of name of district--Action by state commission--Issuance by secretary of state.
38-8-35 38-8-35 to 38-8-37. Repealed by SL 1994, ch 316, §§ 18 to 20.
38-8-38 38-8-38. Repealed by SL 1968, ch 1, § 6.
38-8-39 Composition of district governing board--Number and qualifications of supervisors--Notice of available district offices--Nominating petitions--Election procedure.
38-8-39.1 38-8-39.1. Repealed by SL 1994, ch 316, § 22.
38-8-40 38-8-40. Repealed by SL 1968, ch 1, § 9.
38-8-41 38-8-41. Repealed by omission from SL 1968, ch 1, § 7.
38-8-42 Terms of office of district supervisors.
38-8-43 Removal of supervisor from office.
38-8-44 Filling of vacancies in district board.
38-8-45 Chairman and officers of district board--Quorum--Majority required for actions.
38-8-45.1 Meetings and hearings of district supervisors open to public.
38-8-46 Compensation and expenses of supervisors.
38-8-47 Employment of personnel by supervisors--Legal services--Delegation of powers.
38-8-48 Surety bonds required by district supervisors--Record of proceedings--Financial reports.
38-8-49 District as governmental subdivision and public body--General corporate powers.
38-8-49.1 Budget estimates of operating and maintenance costs submitted to counties--Determination and apportionment of costs--Funds derived from general county fund.
38-8-50 Comprehensive district plans for conservation of resources--Programs and practices included.
38-8-51 Advice and consultation with political subdivision governing bodies.
38-8-51.1 Cooperation with political subdivisions in implementing area-wide waste treatment.
38-8-52 Cooperation between districts.
38-8-53 Conservation district special revenue fund established--Purpose--Continuous appropriation--Promulgation of rules.
38-8-53.1 Conservation district special revenue fund available for loans to watershed districts.
38-8-54 District power to receive loans from special revenue fund.
38-8-54.1 Borrowing funds and pledging credit of district authorized.
38-8-55 County contributions to districts--Financial statement filed with county commissioners.
38-8-56 Notice and hearing on county contributions to districts.
38-8-57 Annual report filed with county contributing to district--Publication of report.
38-8-58 Acquisition, administration, improvement, and disposition of property by district.
38-8-59 Exemption from general laws applicable to public property.
38-8-60 Construction, operation and maintenance of structures by district.
38-8-61 District conservation measures on public and private land.
38-8-62 Administration and management of projects--Acceptance of contributions.
38-8-63 Cooperation with and aid to other public agencies or land occupiers in conservation measures.
38-8-64 Assistance to land owners.
38-8-65 Contributions and land-use agreements required as conditions to assistance provided by district.
38-8-66 38-8-66 to 38-8-89. Repealed by SL 1976, ch 242, § 21.
38-8-90 Petition for dissolution of district--Number of signers--Public meetings and hearings.
38-8-90.1 Governing board resolution for dissolution of district--Vote at general election.
38-8-91 Frequency of petitions for dissolution of district.
38-8-92 Referendum on petition for dissolution of district--Form of ballot--Right to vote.
38-8-93 Timing of referendum on dissolution of district.
38-8-94 Conduct of election on dissolution of district--Certification of results.
38-8-95 Referendum on dissolution of district valid despite informalities.
38-8-96 Determination of administrative practicability and feasibility of continued operation of district--Majority vote requiring discontinuance.
38-8-97 Termination of district affairs on determination by state commission--Disposition of district property.
38-8-98 Application to secretary of state for certificate of dissolution--Recitals in application--Issuance of certificate.
38-8-99 Ordinances and regulations terminated on dissolution of district--Division substituted as party to contracts--Liens and pending actions.
38-8-1. Filing of petition for organization of district--Number of signers--Contents--Consolidation of petitions.
Any ten percent of the voters registered for the last general election within the limits of a territory proposed to be organized into a conservation district may file a petition with the State Conservation Commission asking that a conservation district be organized to function in the territory described in the petition. The petition shall set forth:
(1) The proposed name of the district;
(2) That there is need in the interest of public health, safety, and welfare, for a conservation district to function in the territory described in the petition;
(3) A description of the territory proposed to be organized as a district;
(4) A request that the commission duly define the boundaries for the district; that a referendum be held within the territory so defined on the question of the creation of a conservation district in the territory; and that the commission determine that such a district be created.
If more than one petition is filed covering parts of the same territory, the commission may consolidate all or any such petitions. The petition shall be filed before April first of the year in which a general election is to be held.
Source: SL 1937, ch 19, § 5; SDC 1939, § 4.1507; SL 1947, ch 11; SL 1959, ch 3, § 3; SDC Supp 1960, § 4.1507 (1); SL 1994, ch 316, § 1.
38-8-2. Notice and hearing on petition for organization of district--Questions considered--Right to be heard--Hearing on inclusion of additional territory.
Within sixty days after a petition under § 38-8-1 has been filed with the commission, the commission shall publish a notice as defined in § 38-7-2 of a hearing upon the question of the:
(1) Desirability and necessity, in the interest of the public health, safety, and welfare, of the creation of a conservation district;
(2) Appropriate boundaries to be assigned to the district; and
(3) Propriety of the petition and other proceedings taken under this chapter.
Any interested party may attend the hearing and be heard. If it appears at the hearing that it may be desirable to include within the proposed district territory outside of the area within which the notice of the hearing has been given, the hearing shall be adjourned. The commission shall publish a notice pursuant to § 38-7-2 of further hearing that shall be conducted for the entire area considered for inclusion in the district.
Source: SL 1937, ch 19, § 5; SDC 1939, § 4.1507; SL 1947, ch 11; SDC Supp 1960, § 4.1507 (2); SL 1994, ch 316, § 2; SL 2018, ch 240, § 4.
38-8-3. Factors considered in hearing on petition for organization of district.
In making the determination required by § 38-8-4 and in defining the boundaries of a conservation district, the State Conservation Commission shall give due weight and consideration to the topography of the area considered and of the state, the composition of soils therein, the distribution of erosion, the prevailing land-use practices, the desirability and necessity of including within the boundaries the particular lands under consideration, and the benefits such lands may receive from being included within such boundaries, the relation of the proposed area to existing watersheds and agricultural regions to other conservation districts, already organized or proposed for organization under the provisions of this chapter, and such other physical, geographical, and economic factors as are relevant, having due regard to the legislative policy set forth in § 38-7-1.
Source: SL 1937, ch 19, § 5; SDC 1939, § 4.1507; SL 1947, ch 11; SDC Supp 1960, § 4.1507 (2).
38-8-4. Determination of need for district--Establishment of boundaries.
After a hearing pursuant to § 38-8-2, if the State Conservation Commission shall determine upon the facts presented at such hearing and upon such other relevant facts and information as may be available that there is need, in the interest of public health, safety, and welfare, for a conservation district to function in the territory considered at the hearing, it shall make and record such determination, and shall define, by metes and bounds or by legal subdivisions, the boundaries of such district. The territory to be included within such boundaries need not be contiguous.
Source: SL 1937, ch 19, § 5; SDC 1939, § 4.1507; SL 1947, ch 11; SDC Supp 1960, § 4.1507 (2).
38-8-5. Determination of no need and denial of petition--Time for filing new petitions.
If the State Conservation Commission shall determine after a hearing pursuant to § 38-8-2, after due consideration of the relevant facts mentioned in § 38-8-3, that there is no need for a conservation district to function in the territory considered at the hearing, it shall make and record such determination and shall deny the petition. After six months shall have expired from the date of the denial of any such petition, subsequent petitions covering the same or substantially the same territory may be filed as provided by § 38-8-1 and new hearings held and determinations made thereon.
Source: SL 1937, ch 19, § 5; SDC 1939, § 4.1507; SL 1947, ch 11; SDC Supp 1960, § 4.1507 (2).
38-8-6. Consideration of administrative practicability and feasibility of district.
After the State Conservation Commission has made and recorded a determination that there is need for the organization of a district in a particular territory and has defined the boundaries thereof, it shall consider the question whether the operation of a district within such boundaries with the powers conferred upon conservation districts in this chapter is administratively practicable and feasible.
Source: SL 1937, ch 19, § 5; SDC 1939, § 4.1507; SL 1947, ch 11; SDC Supp 1960, § 4.1507 (3).
38-8-7. Referendum on creation of district--Form of ballot--Right to vote.
To assist the State Conservation Commission in the determination of the administrative practicability and feasibility of a conservation district, the commission shall hold a referendum within the proposed district upon the proposition of the creation of the district, and shall cause due notice of the referendum to be given. The question shall be submitted by ballot upon which the words "For creation of a conservation district of the lands below described and lying in the counties of __________ and __________" and "Against creation of a conservation district of the lands below described and lying in the counties of __________ and __________" shall be inserted, with a square before each proposition and a direction to insert a cross or check mark in the square before one or the other of said propositions as the voter may favor or oppose creation of the district. The ballot shall set forth the boundaries of the proposed district as determined by the commission. Any voter registered for the most recent general election within the boundaries of the territory, as determined by the commission, may vote in the referendum. The Division of Resource Conservation and Forestry shall certify the need for a referendum to the county auditors of the counties comprising the territory of the proposed district. The certification shall be provided before June first of the year in which the general election is to be held, to facilitate the election required by § 38-8-15, and pursuant to the requirements of § 38-8-39.
Source: SL 1937, ch 19, § 5; SDC 1939, § 4.1507; SL 1947, ch 11; SDC Supp 1960, § 4.1507 (3); SL 1994, ch 316, § 3.
38-8-8. Timing of referendum on creation of district.
The elections held under § 38-8-7 shall be conducted at the next general election within the county or counties comprising the territory of the proposed conservation district.
Source: SL 1959, ch 3, § 7; SDC Supp 1960, § 4.1507-1; SL 1994, ch 316, § 4.
38-8-9. Conduct of election on creation of district--Certification of results.
The conduct of any election held under § 38-8-7 shall be governed by the general election laws of South Dakota. The results of the election shall be certified to the State Conservation Commission by the county commission of each county in which the election is conducted.
Source: SL 1959, ch 3, § 7; SDC Supp 1960, § 4.1507-1; SL 1986, ch 326, § 9; SL 1994, ch 316, § 5.
38-8-10. Notices and conduct of hearings and referenda--Procedural regulations--Referendum not invalidated by informalities.
The Division of Resource Conservation and Forestry shall issue the notices and conduct the hearings and referenda required by § 38-8-2. No informalities in the conduct of the referendum or in any related matters may invalidate the referendum or the result of the referendum if notice of the referendum has been given substantially as provided in subdivision 38-7-2(5) and the referendum has been fairly conducted.
Source: SL 1937, ch 19, § 5; SDC 1939, § 4.1507; SL 1947, ch 11; SDC Supp 1960, § 4.1507 (4); SL 1986, ch 326, § 10; SL 1994, ch 316, § 6.
38-8-11. Vote required to authorize creation of district--Extent of participation in voting required.
The State Conservation Commission may not determine that the operation of a proposed district within the defined boundaries is administratively practicable and feasible unless at least a majority of the votes cast in the referendum upon the proposition of creation of the district are cast in favor of the creation of the district.
Source: SL 1937, ch 19, § 5; SDC 1939, § 4.1507; SL 1947, ch 11; SL 1959, ch 3, § 4; SDC Supp 1960, § 4.1507 (5); SL 1994, ch 316, § 7.
38-8-12. Publication of referendum results--Determination and recording of administrative practicability and feasibility.
The Division of Resource Conservation and Forestry shall publish the result of such referendum and the State Conservation Commission shall thereafter consider and determine whether the operation of the district within the defined boundaries is administratively practicable and feasible. If the commission shall determine that the operation of such district is not administratively practicable and feasible, it shall record such determination and deny the petition. If the commission shall determine that the operation of such district is administratively practicable and feasible, it shall record such determination and the Division of Resource Conservation and Forestry shall proceed with the organization of the district in the manner provided in §§ 38-8-15 to 38-8-17, inclusive.
Source: SL 1937, ch 19, § 5; SDC 1939, § 4.1507; SL 1947, ch 11; SL 1959, ch 3, § 4; SDC Supp 1960, § 4.1507 (5).
38-8-13. Factors considered in determining administrative practicability and feasibility.
In determining whether the operation of a proposed district is administratively practicable and feasible, the State Conservation Commission shall give due regard and weight to the attitudes of the occupiers of land lying within the defined boundaries, the probable expense of carrying on erosion control operations within the district and other relevant economic and social factors pursuant to the legislative policy set forth in § 38-7-1.
Source: SL 1937, ch 19, § 5; SDC 1939, § 4.1507; SL 1947, ch 11; SL 1959, ch 3, § 4; SDC Supp 1960, § 4.1507 (5); SL 1994, ch 316, § 8.
38-8-14. Time for filing new petitions after denial of district.
After six months shall have expired from the date of entry of a determination by the State Conservation Commission that operation of a proposed district is not administratively practicable and feasible and denial of a petition pursuant to such determination, subsequent petitions may be filed as provided by § 38-8-1, and action taken thereon in accordance with the provisions of this chapter.
Source: SL 1937, ch 19, § 5; SDC 1939, § 4.1507; SL 1947, ch 11; SDC Supp 1960, § 4.1507 (7).
38-8-15. Election of initial supervisors--District as governmental subdivision.
At the general election that includes the referendum on the establishment of a conservation district, five supervisors shall be elected as provided in § 38-8-39. The election of the supervisors is null and void if the referendum on the establishment of the district fails. The district is a governmental subdivision of this state and a public body, corporate and politic, upon the taking of the proceedings described in §§ 38-8-16 and 38-8-17.
Source: SL 1937, ch 19, §§ 5, 7; SDC 1939, §§ 4.1507, 4.1509; SL 1947, ch 11; SL 1947, ch 12; SL 1953, ch 7, § 1; SL 1957, ch 4, § 3; SDC Supp 1960, §§ 4.1507 (6), 4.1509 (1); SDCL, § 38-8-38; SL 1968, ch 1, § 5; SL 1994, ch 316, § 9.
38-8-16. Application filed with secretary of state by elected supervisors--Contents--Accompanying statement by commission.
The five supervisors elected pursuant to § 38-8-15 shall present to the secretary of state an application signed and sworn to by them to complete the organization of the district. The application shall contain:
(1) A statement that a petition for the creation of the district was filed with the State Conservation Commission pursuant to the provisions of this chapter, and that the proceedings specified in this chapter were taken pursuant to the petition;
(2) The name and official residence of each of the supervisors, together with a certified copy of the appointments evidencing their right to office and their term of office;
(3) The name proposed for the district;
(4) The location of the principal office for the district.
This application shall be accompanied by a statement of the State Conservation Commission setting forth the boundaries of the district and certifying that the proceedings specified in this chapter have been fulfilled.
Source: SL 1937, ch 19, § 5; SDC 1939, § 4.1507; SL 1947, ch 11; SDC Supp 1960, § 4.1507 (6); SL 1968, ch 1, § 5; SL 1994, ch 316, § 10.
38-8-17. Filing and recording of application and statement--Issuance of certificate of organization.
The secretary of state shall file and record the application and statement required by § 38-8-16 in an appropriate book of record in his office and shall make and issue to the said supervisors a certificate, under the seal of the state, of the due organization of the said district, and shall record such certificate with the application and statement. The secretary of state shall make no charge for the services herein required.
Source: SL 1937, ch 19, § 5; SDC 1939, § 4.1507; SL 1947, ch 11; SDC Supp 1960, § 4.1507 (6).
38-8-18. Certificate of organization as proof of establishment of district.
In any suit, action, or proceeding involving the validity or enforcement of, or relating to, any contract, proceeding, or action of a conservation district, the district shall be deemed to have been established in accordance with the provisions of this chapter upon proof of the issuance by the secretary of state of the certificate described by § 38-8-17. A copy of such certificate duly certified by the secretary of state shall be admissible in evidence in any such suit, action, or proceeding and shall be proof of the filing and contents thereof.
Source: SL 1937, ch 19, § 5; SDC 1939, § 4.1507; SL 1947, ch 11; SDC Supp 1960, § 4.1507 (9).
38-8-19. Petition for inclusion of additional territory--Procedure.
Petitions in a form approved by the State Conservation Commission for including additional territory within an existing conservation district may be filed with the commission, and the proceedings provided for in §§ 38-8-2 to 38-8-18, inclusive, in the case of petitions to organize a district shall be observed in the case of petitions for such inclusion. If two-thirds of the voters registered for the last general election in an area proposed for inclusion or addition to an existing district file a petition with the commission for inclusion, the area shall be included within the district.
Source: SL 1937, ch 19, § 5; SDC 1939, § 4.1507; SL 1947, ch 11; SL 1959, ch 3, § 5; SDC Supp 1960, § 4.1507 (8); SL 1994, ch 316, § 11.
38-8-20. Inclusion of additional territory by amendment of charter--Notice and hearing.
Supervisors of a conservation district are hereby authorized, to amend the district charter of organization, to include lands previously excluded from the district and lying within the district boundaries as hereinafter provided.
The conservation district supervisors shall give due notice, as determined by the supervisors, of the intent to include such lands within the district and said notice to include the time, date and place of a hearing upon the inclusion of such lands. Said notice shall be given not less than thirty days prior to the date set for said hearing. All persons attending the hearing shall have an opportunity to be heard on the proposition of including such lands within the district.
Source: SL 1964, ch 7.
38-8-21. Resolution to include additional territory--Effective date.
After giving due consideration to testimony presented at the hearing required by § 38-8-20, and receiving consent from the governing or administrative body having jurisdiction over such excluded territory, the conservation district supervisors may adopt a resolution including such lands within the district and file a copy of the resolution and notice of hearing with the secretary of state.
The inclusion of such lands within the district will become effective upon filing of said records with the secretary of state.
Source: SL 1964, ch 7.
38-8-22. Petition for combination or division of districts--Number of signers--Form.
Petitions may be filed with the State Conservation Commission for a hearing and referendum on the combination of two or more districts, or for the division of one or more districts and the combination of any divided part thereof with any other district or a part of a divided district. Any such petition shall be signed by at least ten percent of the voters registered at the last general election and a majority of the supervisors within each district to be affected. The commission shall prescribe the forms for such petitions.
Source: SDC 1939, § 4.1517 (1) as enacted by SL 1947, ch 13; SL 1968, ch 1, § 13; SL 1994, ch 316, § 12.
38-8-22.1. Governing board resolution for combination or division of districts--Vote at general election.
In lieu of the petition process authorized under § 38-8-22, the conservation district governing boards of the affected districts may propose and adopt a resolution calling for the combining or dividing of districts and present it to the registered voters for a vote at the next general election under the requirements of § 38-8-39.
Source: SL 2019, ch 179, § 1.
38-8-23. Commission hearing on combination or division of districts.
Within sixty days after receipt of a petition pursuant to § 38-8-22 or within sixty days after the receipt of a resolution pursuant to § 38-8-22.1, the State Conservation Commission shall set a date for a hearing and issue notices and conduct a hearing upon the proposition of combination or division. All voters registered for the last general election within the territory described in the petition or resolution and other interested parties may be heard.
Source: SDC 1939, § 4.1517 (1) as enacted by SL 1947, ch 13; SL 1968, ch 1, § 13; SL 1994, ch 316, § 13; SL 2019, ch 179, § 4; SL 2022, ch 154, § 1.
38-8-24. Determination of administrative practicability and feasibility of combining districts.
If the State Conservation Commission shall determine upon the facts presented at the hearing pursuant to § 38-8-23 and information as may be available that the combination of such districts or territory is economically practicable and feasible, the commission shall make and record such determination. If the commission shall determine after such hearing and giving due consideration to said facts and information that combination of such districts or territory is not practicable or economically feasible such petition shall be denied.
Source: SDC 1939, § 4.1517 (1) as enacted by SL 1947, ch 13; SL 1968, ch 1, § 13.
38-8-24.1. Petition for referendum on organization of district--Commission action on petition.
Any time within sixty days after the hearing and determination by the State Conservation Commission pursuant to §§ 38-8-23 and 38-8-24, the commission shall act upon the petition in accordance with procedures prescribed in this chapter for organization of a district.
Source: SDC 1939, § 4.1517 (1) as enacted by SL 1968, ch 1, § 13; SL 1969, ch 6, § 1; SL 1994, ch 316, § 14.
38-8-25. Appointment of supervisors for reorganized district.
Within sixty days after the hearing and determination pursuant to §§ 38-8-23 and 38-8-24, the Division of Resource Conservation and Forestry shall appoint five supervisors to serve until the next general election, when all supervisors shall be elected.
Source: SDC 1939, § 4.1517 (1) (a) as enacted by SL 1947, ch 13; SL 1968, ch 1, § 13; SL 1969, ch 6, § 1; SL 1994, ch 316, § 15.
38-8-26. Certificates of organization for new districts--Certificate of dissolution--Assets and liabilities revert to new district.
The requirements of §§ 38-8-16 to 38-8-18, inclusive, apply to applications for issuance of certificates of organization for new districts pursuant to § 38-8-22. Upon termination of the existing districts, the secretary of state shall issue and record a certificate of dissolution. All assets and liabilities of the original districts shall revert to the new district.
Source: SDC 1939, § 4.1517 (1) (a) as enacted by SL 1947, ch 13; SL 1968, ch 1, § 13; SL 1969, ch 6, § 2; SL 1994, ch 316, § 16.
38-8-30. Petition for boundary adjustment between adjoining districts.
Petitions signed by a majority of the members of each of the governing bodies of adjoining conservation districts may be filed with the State Conservation Commission asking that the boundary line between such districts be changed. Such petitions shall set out the existing boundary line between the districts and the proposed new boundary.
Source: SDC 1939, § 4.1517 (2) as enacted by SL 1947, ch 13.
38-8-31. Notice and hearing on boundary adjustment between districts.
Within thirty days after a petition has been filed pursuant to § 38-8-30, the commission shall provide due notice as defined in § 38-7-2 of a public hearing upon the question of the proposed change of boundary. Any interested person may attend the hearing and be heard.
Source: SDC 1939, § 4.1517 (2) as enacted by SL 1947, ch 13; SL 1994, ch 316, § 17; SL 2018, ch 240, § 5.
38-8-32. Determination of administrative practicability and feasibility of boundary adjustments--Factors considered--Notice to districts.
After hearing pursuant to § 38-8-31, the State Conservation Commission shall determine whether the operation of the said districts within the proposed new boundaries would be administratively practicable and feasible. In making such determination, the commission shall give consideration to the standards provided in this chapter relative to the organization of districts; if, after such hearing, the commission determines in favor of the proposed change of boundaries, it shall notify the chairmen of the governing bodies of the districts of its determination.
Source: SDC 1939, § 4.1517 (2) as enacted by SL 1947, ch 13.
38-8-33. Application to secretary of state for certificate evidencing boundary changes--Accompanying statement by state commission--Issuance of certificate.
Upon determination by the State Conservation Commission in favor of a proposed change of district boundaries, the chairmen of the governing bodies of the districts shall present to the secretary of state an application, signed by them for a certificate evidencing the change of boundary. The application shall be accompanied by a statement by the commission certifying that the boundary between the districts has been changed in accordance with the procedures prescribed in §§ 38-8-30 to 38-8-32, inclusive, and setting forth the new boundary line. When the application and statement have been filed with the secretary of state, the change of boundary shall be deemed effective and the secretary of state shall issue to the supervisors of each of the districts a certificate evidencing the change of boundary.
Source: SDC 1939, § 4.1517 (2) as enacted by SL 1947, ch 13.
38-8-34. Petition for change of name of district--Action by state commission--Issuance by secretary of state.
Petitions for changing the names of districts organized under this chapter may be filed with the State Conservation Commission. Any such petition shall be signed by a majority of the district supervisors and shall state the present name of the district and the proposed new name. If the commission determines that the proposed new name is not identical with or so similar to that of any other district in the state as to lead to confusion or uncertainty, it shall present a statement of such determination to the secretary of state, who shall issue to the district a certificate, under the seal of the state, evidencing the change of name of the district. Upon the issuance of such certificate, the supervisors of the district shall cause due notice to be given of the change of name of the district.
Source: SDC 1939, § 4.1518 as enacted by SL 1947, ch 14.
38-8-39. Composition of district governing board--Number and qualifications of supervisors--Notice of available district offices--Nominating petitions--Election procedure.
The governing body of a district shall consist of a board of supervisors.
Each conservation district shall have a board of supervisors consisting of five members, each of whom shall be elected on a nonpartisan ballot at a general election and whose term of office shall be four years commencing on the first of January following election. Supervisors shall be registered voters within the district, to be elected at large.
The board of supervisors may, at its discretion, choose to elect its supervisors in precincts that contain as near as possible an equal number of residents, as determined by the last preceding federal decennial census.
Before any general election, the board of supervisors of an organized conservation district shall give notice of any district offices for which nominations may be filed. The notice shall be published at least once each week for two consecutive weeks in the official newspaper or newspapers of any counties within the territory of the district. The last publication may not be less than ten nor more than fifteen days before the deadline for filing nominating petitions. The Division of Resource Conservation and Forestry shall provide the required notice before a referendum regarding establishment of a new district.
Supervisors shall be nominated by a petition signed by fifteen or more voters in the district for which the candidate seeks election.
The petition shall be verified by the circulator and be accompanied by the declaration of the candidate in a form substantially conforming to nominating petitions prescribed under the primary election laws of this state governing nominating petitions for nonpolitical candidates. The petition shall be filed on or before July first of the year in which the general election is to be held, with the county auditor of the county, or where more than one county is within the territorial limits of the district, with the secretary of state. The auditor shall prepare ballots substantially in the form of the nonpolitical ballot and give notice thereof as provided by the general election laws of this state. The supervisors shall be elected by plurality. The election shall be conducted, canvassed, recounted, and contested as elections under the general laws of this state, except as otherwise provided in this chapter, and unless the general laws are inapplicable. If the details concerning the conduct, canvassing, recounting or contest of the election are not set forth within this chapter, and the general election laws are not applicable, then the commission shall promulgate rules pursuant to chapter 1-26 to make possible the submission to an election any matter which by the terms of this chapter may be submitted to a vote of the voters of any proposed or established district.
Source: SL 1937, ch 19, § 7; SDC 1939, § 4.1509; SL 1947, ch 12; SL 1953, ch 7, § 1; SL 1957, ch 4, § 3; SDC Supp 1960, § 4.1509 (1); SL 1968, ch 1, § 6; SL 1969, ch 5, § 1; SL 1985, ch 15, § 49; SL 1987, ch 284; SL 1994, ch 316, § 21; SL 2017, ch 179, § 1; SL 2019, ch 180, § 1.
38-8-42. Terms of office of district supervisors.
For the purpose of staggering terms, at the first general election, the three at-large candidates receiving the largest number of votes shall be elected for a four-year term, and the two candidates receiving the next highest number of votes shall be elected for two-year terms. In succeeding elections all supervisors shall be elected for four-year terms commencing the following January first.
Source: SL 1937, ch 19, § 7; SDC 1939, § 4.1509; SL 1947, ch 12; SL 1953, ch 7, § 1; SL 1957, ch 4, § 3; SDC Supp 1960, § 4.1509 (1); SDCL § 38-8-38; SL 1968, ch 1, § 6; SL 1994, ch 316, § 23; SL 2017, ch 179, § 2.
38-8-43. Removal of supervisor from office.
Any supervisor of a conservation district may be removed by the State Conservation Commission upon notice and hearing, for neglect of duty or malfeasance in office, but for no other reason.
Source: SL 1937, ch 19, § 7; SDC 1939, § 4.1509; SL 1947, ch 12; SDC Supp 1960, § 4.1509 (3); SL 1968, ch 1, § 8.
38-8-44. Filling of vacancies in district board.
Vacancies in the term of any supervisor of a conservation district shall be filled by appointment by a majority of the other district supervisors, such appointee to serve until the next general election at which time such vacancy shall be filled by the voters for the unexpired term.
Source: SL 1937, ch 19, § 7; SDC 1939, § 4.1509; SL 1947, ch 12; SL 1953, ch 7, § 1; SL 1957, ch 4, § 3; SDC Supp 1960, § 4.1509 (1); SL 1968, ch 1, § 6; SL 1985, ch 15, § 50.
38-8-45. Chairman and officers of district board--Quorum--Majority required for actions.
At the first meeting in January of each year the supervisors of a conservation district shall designate a chairman, vice-chairman, a secretary, and a treasurer, or a secretary-treasurer. The treasurer, or secretary-treasurer, if combined, need not be a member of the board of supervisors. A majority of the supervisors shall constitute a quorum and the concurrence of a majority in any matter within their duties shall be required for its determination.
Source: SL 1937, ch 19, § 7; SDC 1939, § 4.1509; SL 1947, ch 12; SL 1953, ch 7, § 2; SDC Supp 1960, § 4.1509 (2); SL 1968, ch 1, § 7.
38-8-45.1. Meetings and hearings of district supervisors open to public.
Except as otherwise provided by law, all meetings and hearings of the board of supervisors shall be open to the public and publicized as may be determined by the board.
Source: SDC Supp 1960, § 4.1509 (4) as enacted by SL 1968, ch 1, § 9.
38-8-46. Compensation and expenses of supervisors.
A supervisor of a conservation district may receive compensation for his services and he shall be entitled to expenses, including traveling expenses, necessarily incurred in the discharge of his duties.
Source: SL 1937, ch 19, § 7; SDC 1939, § 4.1509; SL 1947, ch 12; SL 1953, ch 7, § 2; SDC Supp 1960, § 4.1509 (2); SL 1968, ch 1, § 7.
38-8-47. Employment of personnel by supervisors--Legal services--Delegation of powers.
The supervisors of a conservation district may employ such agents and employees, permanent and temporary, as they may require, and shall determine their qualifications, duties, and compensation. The supervisors may call upon the attorney general of the state and state's attorney of the county or counties in which the district is situated, for such legal services as they may require. The supervisors may delegate to their officers, to one or more supervisors, or to one or more employees such powers and duties as they may deem proper and consistent with this chapter.
Source: SL 1937, ch 19, § 7; SDC 1939, § 4.1509; SL 1947, ch 12; SL 1953, ch 7, § 2; SDC Supp 1960, § 4.1509 (2); SL 1968, ch 1, § 7.
38-8-48. Surety bonds required by district supervisors--Record of proceedings--Financial reports.
The supervisors of a conservation district may provide for the execution of surety bonds for all employees and officers who shall be entrusted with funds or property; shall provide for the keeping of a full and accurate record of all proceedings and of all resolutions and orders issued or adopted; and, at the close of business of each fiscal year or as may be otherwise required by the State Conservation Commission, shall cause a financial report and report of principal activities to be made in accordance with sample forms and rules promulgated pursuant to chapter 1-26 by the commission. The reports shall be prepared within sixty days of the close of the district's fiscal year, and the written reports shall be kept at the principal place of business of both the Division of Resource Conservation and Forestry and the district.
Source: SL 1937, ch 19, § 7; SDC 1939, § 4.1509; SL 1947, ch 12; SDC Supp 1960, § 4.1509 (3); SL 1968, ch 1, § 8; SL 1970, ch 224; SL 1975, ch 247, § 3; SL 1994, ch 316, § 24.
38-8-49. District as governmental subdivision and public body--General corporate powers.
A conservation district organized under the provisions of this chapter shall constitute a governmental subdivision of this state, and a public body, corporate and politic, exercising public powers, and such district, and the supervisors thereof, shall have the following powers, in addition to others granted in other sections of this chapter:
(1) To sue and be sued in the name of the district;
(2) To have a seal, which seal shall be judicially noticed;
(3) To have perpetual succession unless terminated as hereinafter provided;
(4) To make and execute contracts and other instruments, necessary or convenient to the exercise of its powers.
Source: SL 1937, ch 19, § 8; SDC 1939, § 4.1510 (1); SL 1986, ch 326, § 12.
38-8-49.1. Budget estimates of operating and maintenance costs submitted to counties--Determination and apportionment of costs--Funds derived from general county fund.
A conservation district and its supervisors shall at least three weeks before the dates specified by law for the setting up of official budgets, estimate the total cost of operating and maintaining the district for the ensuing fiscal year and the amount of moneys that may be available from all sources. These estimates shall be submitted in the form of a budget to the board of county commissioners of the county or counties comprising the territory of the district and the county or counties shall then provide the additional moneys required to operate and maintain the district during the ensuing fiscal year. The counties shall follow the procedures set forth in §§ 38-8-55 to 38-8-57, inclusive, and may disallow or otherwise, modify any item or items which it determines are not justified. The cost of operating and maintaining the district over the estimated moneys available to the district from all other sources, shall be apportioned by the district board of supervisors among the counties on the basis of land acreages lying in the respective counties comprising the district. Funds for the operation and maintenance of the district shall be derived from the general fund of the county or counties comprising the district.
Source: SDC 1939, § 4.1510 as added by SL 1968, ch 1, § 11; SL 1985, ch 77, § 24.
38-8-50. Comprehensive district plans for conservation of resources--Programs and practices included.
A conservation district, and the supervisors thereof, shall have the power, in addition to others granted in other sections of this chapter, to develop annual and long range ten-year comprehensive plans, which plans may be prepared with the cooperation and assistance of the State Planning Commission and other state and federal agencies, for the conservation of all renewable natural resources and for the control and prevention of soil erosion, flood prevention, or the conservation and development, utilization, and disposal of soil and water within the district, including but not limited to, the specification of engineering operations, methods of cultivation, pollution abatement, cropping systems, and changes in the use of land for all purposes. Such plans shall be developed and modified each year to maintain a ten-year projection.
Source: SL 1937, ch 19, § 8; SDC 1939, § 4.1510 (7); SL 1957, ch 4, § 7; SL 1968, ch 1, § 10.
38-8-51. Advice and consultation with political subdivision governing bodies.
The supervisors of a conservation district may invite the governing body of any political subdivision of this state located near or within the territory comprising the district to designate a representative to advise and consult with the board on all questions of program and policy which may affect the property, water supply, or otherwise be of interest to such subdivisions.
Source: SL 1937, ch 19, § 7; SDC 1939, § 4.1509; SL 1947, ch 12; SL 1953, ch 7, § 3; SDC Supp 1960, § 4.1509 (4); SL 1968, ch 1, § 9.
38-8-51.1. Cooperation with political subdivisions in implementing area-wide waste treatment.
A conservation district may join together with one or more political subdivisions to plan, consult, and coordinate their efforts to implement area-wide waste treatment under the Federal Water Pollution Control Act Amendments of 1972 (P.L. 92-500) within designated water quality management areas.
Source: SL 1981, ch 282, § 1.
38-8-52. Cooperation between districts.
The supervisors of any two or more districts organized under the provisions of this chapter may cooperate with one another in the exercise of any or all powers conferred in this chapter.
Source: SL 1937, ch 19, § 12; SDC 1939, § 4.1514.
38-8-53. Conservation district special revenue fund established--Purpose--Continuous appropriation--Promulgation of rules.
There is hereby created the conservation district special revenue fund to be used for the purpose of aiding, assisting, and cooperating with conservation districts of the state in securing by purchase, or otherwise, necessary equipment, trees, and other planting materials, and supplies as needed in furthering the program of conservation in these districts. Interest earned on money in the fund must be deposited in the fund. Any repayment of the principal amount of a loan and any interest thereon must be deposited into the fund and used for making new loans. Money in the fund is hereby continuously appropriated for the purposes provided in this section.
The fund is administered by the State Conservation Commission and monies in the fund are expended upon vouchers approved by the commission, or its designated representative.
The monies in the fund are available to conservation districts of the state on a reimbursable basis by the districts. The commission shall promulgate rules, pursuant to chapter 1-26, establishing criteria and procedures for making loans to the conservation districts.
Source: SL 1949, ch 390; SL 1951, ch 360; SDC Supp 1960, § 4.1519; SL 1969, ch 5, § 2; SL 2015, ch 203, § 8; SL 2023, ch 143, § 1.
38-8-53.1. Conservation district special revenue fund available for loans to watershed districts.
The conservation district special revenue fund shall be made available to watershed districts of the state on a reimbursable basis, by watershed districts participating in such special revenue funds, for the purpose of obtaining options, easements and rights-of-way for watershed development. Such loans shall be in accordance with rules and regulations prescribed by the State Conservation Commission and shall be expended upon vouchers approved by the commission or its delegated representative.
Source: SDC Supp 1960, § 4.1519 as added by SL 1969, ch 7.
38-8-54. District power to receive loans from special revenue fund.
A conservation district, and the supervisors thereof, shall have the power, in addition to others granted in other sections of this chapter, to make loans from the State of South Dakota from funds available through the conservation district special revenue fund on a reimbursable basis in accordance with policies and procedures prescribed by the State Conservation Commission.
Source: SDC 1939, § 4.1510 (11) as added by SL 1949, ch 11.
38-8-54.1. Borrowing funds and pledging credit of district authorized.
The conservation districts may borrow funds to meet the necessities arising from the operation and maintenance of the conservation district, and may pledge the credit of the district for the payment of the obligations.
Source: SL 1979, ch 263.
38-8-55. County contributions to districts--Financial statement filed with county commissioners.
The board of county commissioners may contribute funds to conservation districts. The funds shall be used to hire employees, purchase supplies, and carry out district programs, for the conservation of natural resources that will protect the tax base of the county and provide for the general welfare of the people of the county. The money shall be paid from the general fund of the county. Any conservation district, before receiving such funds, shall file with the county commissioners a financial statement for the last three years itemizing the amount of funds received and expenditures.
Source: SDC 1939, § 12.0617 (15) as added by SL 1963, ch 37; SL 1994, ch 316, § 25; SL 2015, ch 203, § 9.
38-8-56. Notice and hearing on county contributions to districts.
The power granted by § 38-8-55 can only be exercised after at least one public hearing on the matter. The board of county commissioners shall give at least ten days' notice of such hearing by publication and by posting a copy of such notice at three of the most public places in the county.
Source: SDC 1939, § 12.0617 (15) as added by SL 1963, ch 37.
38-8-57. Annual report filed with county contributing to district--Publication of report.
Any conservation district receiving funds under §§ 38-8-55 and 38-8-56 shall file with the county commissioners an itemized annual financial report within sixty days following the end of the district's fiscal year. Within thirty days of receiving the financial report, the county commissioners shall publish the report in the official county newspaper or newspapers.
Source: SDC 1939, § 12.0617 (15) as added by SL 1963, ch 37; SL 1994, ch 316, § 26.
38-8-58. Acquisition, administration, improvement, and disposition of property by district.
A conservation district, and the supervisors thereof, shall have the following powers, in addition to others granted in other sections of this chapter:
(1) To obtain options upon and to acquire by purchase, exchange, lease, gift, grant, bequest, devise, or otherwise, any property, real or personal, or rights or interests therein;
(2) To maintain, administer, and improve any properties acquired;
(3) To receive income from such properties and to expend such income in carrying out the purposes and provisions of this chapter; and
(4) To sell, lease, or otherwise dispose of any of its property or interest therein in furtherance of the purposes and the provisions of this chapter.
Source: SL 1937, ch 19, § 8; SDC 1939, § 4.1510 (2).
38-8-59. Exemption from general laws applicable to public property.
No provisions with respect to the acquisition, operation, or disposition of property by other public bodies shall be applicable to a district organized under this chapter unless the Legislature shall specifically so state.
Source: SL 1937, ch 19, § 8; SDC 1939, § 4.1510 (3).
38-8-60. Construction, operation and maintenance of structures by district.
A conservation district, and the supervisors thereof, shall have the power, in addition to others granted in other sections of this chapter, to construct, improve, operate, and maintain such structures as may be necessary or convenient for the performance of any of the operations authorized in this chapter.
Source: SL 1937, ch 19, § 8; SDC 1939, § 4.1510 (4); SL 1957, ch 4, § 4.
38-8-61. District conservation measures on public and private land.
A conservation district, and the supervisors thereof, shall have the power, in addition to others granted in other sections of this chapter, to carry out soil erosion preventive and control measures and works of improvement for flood prevention or the conservation development, utilization, and disposal of water within the districts on lands owned or controlled by this state or any of its agencies, with the cooperation of the agency administering and having jurisdiction thereof, and on any other lands within the district upon obtaining the consent of the occupier of such lands or the necessary rights or interest in such lands.
Source: SL 1937, ch 19, § 8; SDC 1939, § 4.1510 (5); SL 1957, ch 4, § 5.
38-8-62. Administration and management of projects--Acceptance of contributions.
A conservation district and its supervisors may:
(1) Take over, by purchase, lease, or otherwise, and administer any natural resources conservation, flood prevention, and agricultural water management, erosion control, or erosion prevention project located within its boundaries undertaken by the United States or any of its agencies, or of this state or any of its agencies;
(2) Manage, as agent of the United States or any of its agencies, or of this state or any of its agencies, any natural resources conservation, flood prevention, and agricultural water management, erosion control, or erosion prevention project, or combinations thereof, within its boundaries;
(3) Act as agent for the United States or any of its agencies, or for this state or any of its agencies, in connection with the acquisition, construction, operation, or administration of any natural resources conservation, flood prevention, and agricultural water management, erosion control, or erosion prevention project, or combinations thereof, within its boundaries; and
(4) Accept donations, gifts, and contributions in money, services, materials, or otherwise, from the United States or any of its agencies, or from this state, or any of its agencies, or from any other source, and to use or expend such money, services, materials, or other contributions in carrying on its operation.
Source: SL 1937, ch 19, § 8; SDC 1939, § 4.1510 (6); SL 1957, ch 4, § 6; SL 2015, ch 203, § 10.
38-8-63. Cooperation with and aid to other public agencies or land occupiers in conservation measures.
A conservation district, and the supervisors thereof, shall have the power, in addition to others granted in other sections of this chapter, to cooperate, or enter into agreements with, and within the limits of appropriations duly made available to it by law, to furnish financial or other aid to any agency, governmental or otherwise, or any occupier of lands within the district, in carrying on of erosion control and prevention operations and works of improvement for flood prevention for the conservation, development, utilization, and disposal of water within the district, subject to such conditions as the supervisors may deem necessary to advance the purposes of this chapter.
Source: SL 1937, ch 19, § 8; SDC 1939, § 4.1510 (8); SL 1957, ch 4, § 8.
38-8-64. Assistance to land owners.
A conservation district and its supervisors may make available, on terms as it prescribes, to land owners within the district, equipment, material, or supplies as may be available to assist the land owners to carry on operations for the conservation of natural resources and for the prevention and control of soil erosion, flood prevention of the conservation, development, utilization, and disposal of water.
Source: SL 1937, ch 19, § 8; SDC 1939, § 4.1510 (9); SL 1957, ch 4, § 9; SL 2015, ch 203, § 11.
38-8-65. Contributions and land-use agreements required as conditions to assistance provided by district.
As a condition to the extending of any benefits under this chapter to, or the performance of work upon, any lands not owned or controlled by this state or any of its agencies, the supervisors of a conservation district may require contributions in money, services, materials, or otherwise to any operations conferring such benefits, and may require land occupiers to enter into and perform such agreements or covenants as to the permanent use of such lands as will tend to prevent or control erosion and prevent floodwater and sediment damages thereon.
Source: SL 1937, ch 19, § 8; SDC 1939, § 4.1510 (10); SL 1957, ch 4, § 10.
38-8-90. Petition for dissolution of district--Number of signers--Public meetings and hearings.
After five years following the organization of a district under the provisions of this chapter, but before April first of the year in which the general election is to be held, any ten percent of the voters registered for the last general election within the boundaries of the district may file a petition with the State Conservation Commission praying that the operations of the district be terminated and the existence of the district discontinued. The commission may conduct such public meetings and public hearings upon the petition as may be necessary to assist it in considering the petition and in determining whether public support for the petition is sufficient to warrant a referendum.
Source: SL 1937, ch 19, § 14; SDC 1939, § 4.1516; SL 1959, ch 3, § 6; SL 1994, ch 316, § 27.
38-8-90.1. Governing board resolution for dissolution of district--Vote at general election.
In lieu of the petition process authorized in § 38-8-90, a conservation district governing board may propose and adopt a resolution calling for the dissolution of the district and present it to the people for a vote at the next general election under the requirements of § 38-8-39.
Source: SL 2019, ch 179, § 2.
38-8-91. Frequency of petitions for dissolution of district.
The State Conservation Commission shall not entertain petitions for the discontinuance of any district nor conduct referenda upon such petitions nor make determinations pursuant to such petitions in accordance with the provisions of this chapter, more often than once in three years.
Source: SL 1937, ch 19, § 14; SDC 1939, § 4.1516; SL 1959, ch 3, § 6.
38-8-92. Referendum on petition for dissolution of district--Form of ballot--Right to vote.
Within one hundred twenty days after a petition pursuant to § 38-8-90 has been received by the State Conservation Commission and a finding by the commission of public support for a referendum, the Division of Resource Conservation and Forestry shall give due notice, as defined in § 38-7-2, of the holding of a referendum, and shall supervise the referendum. The commission shall promulgate rules pursuant to chapter 1-26 governing the conduct of the referendum. The question shall be submitted by ballots upon which the words "For continuing the existence of the __________ (name of the conservation district to be here inserted)" and "Against continuing the existence of the __________ (name of the conservation district to be here inserted)," shall be inserted with a square before each proposition and direction to insert a cross or check mark in the square before one or the other of said propositions as the voter may favor or oppose discontinuance of the district. The Division of Resource Conservation and Forestry shall certify the need for a referendum to the county auditors of the counties having area included in the district. The certification shall be provided before August first of the year in which the general election is to be held.
Source: SL 1937, ch 19, § 14; SDC 1939, § 4.1516; SL 1959, ch 3, § 6; SL 1994, ch 316, § 28.
38-8-93. Timing of referendum on dissolution of district.
The elections held under § 38-8-92 shall be conducted at the next general election.
Source: SL 1959, ch 3, § 7; SDC Supp 1960, § 4.1507-1; SL 1994, ch 316, § 29.
38-8-94. Conduct of election on dissolution of district--Certification of results.
The conduct of elections held under § 38-8-92 shall be governed by the general election laws. The county commission in each county in which the election is conducted shall certify the results of the election to the State Conservation Commission.
Source: SL 1959, ch 3, § 7; SDC Supp 1960, § 4.1507-1; SL 1986, ch 326, § 13; SL 1994, ch 316, § 30.
38-8-95. Referendum on dissolution of district valid despite informalities.
No informalities in the conduct of a referendum pursuant to § 38-8-92 or in any matters relating thereto shall invalidate said referendum or the result thereof if notice thereof shall have been given substantially as provided in subdivision 38-7-2(5) and said referendum shall have been fairly conducted.
Source: SL 1937, ch 19, § 14; SDC 1939, § 4.1516; SL 1959, ch 3, § 6.
38-8-96. Determination of administrative practicability and feasibility of continued operation of district--Majority vote requiring discontinuance.
The State Conservation Commission shall determine after a referendum pursuant to § 38-8-92 whether continued operation of the district is administratively practicable and feasible and shall certify such determination to the supervisors of the district. The commission may determine that the continued operation of the district is administratively practicable and feasible unless at least a majority of the votes cast in the referendum are cast in favor of the discontinuance of the district. The referendum is void if less than a majority of the registered voters in the district have cast their vote.
Source: SL 1937, ch 19, § 14; SDC 1939, § 4.1516; SL 1959, ch 3, § 6; SL 1994, ch 316, § 31.
38-8-97. Termination of district affairs on determination by state commission--Disposition of district property.
Upon receipt from the State Conservation Commission of a certification that the commission has determined that the continued operation of the district is not administratively practicable and feasible, pursuant to the provisions of this chapter, the supervisors shall terminate the affairs of the district. The supervisors shall dispose of all property belonging to the district at public auction and after all debts and obligations have been satisfied shall pay over the proceeds of such sale to the state conservation commission grant fund.
Source: SL 1937, ch 19, § 14; SDC 1939, § 4.1516; SL 1959, ch 3, § 6; SL 1994, ch 316, § 32.
38-8-98. Application to secretary of state for certificate of dissolution--Recitals in application--Issuance of certificate.
Upon compliance with § 38-8-97, the supervisors shall file an application, duly verified, with the secretary of state for the discontinuance of the conservation district, and shall transmit with such application the certificate of the State Conservation Commission setting forth the determination of the commission that the continued operation of such district is not administratively practicable and feasible. The application shall recite that the property of the district has been disposed of and the proceeds paid over as in this chapter provided, and shall set forth a full accounting of such properties and proceeds of the sale. The secretary of state shall issue to the supervisors a certificate of dissolution and shall record such certificate in an appropriate book of record in his office. The secretary of state shall make no charge for the services herein required.
Source: SL 1937, ch 19, § 14; SDC 1939, § 4.1516; SL 1959, ch 3, § 6.
38-8-99. Ordinances and regulations terminated on dissolution of district--Division substituted as party to contracts--Liens and pending actions.
Upon issuance of a certificate of dissolution under the provisions of this chapter, all ordinances and regulations theretofore adopted and in force within the conservation district shall be of no further force and effect. All contracts theretofore entered into, to which the district or supervisors are parties, shall remain in force and effect for the period provided in such contracts. The Division of Resource Conservation and Forestry shall be substituted for the district or supervisors as party to such contracts. The division shall be entitled to all benefits and subject to all liabilities under such contracts and shall have the same right and liability to perform, to require performance, to sue and to be sued thereon, and to modify or terminate such contracts by mutual consent or otherwise, as the supervisors of the district would have had. Such dissolution shall not affect the lien of any judgment entered under the provisions of this chapter, nor the pendency of any action instituted under the provisions of such chapter, and the division shall succeed to all the rights and obligations of the district or supervisors as to such liens and actions.
Source: SL 1937, ch 19, § 14; SDC 1939, § 4.1516; SL 1959, ch 3, § 6.
CHAPTER 38-8A
SOIL EROSION AND SEDIMENT DAMAGE CONTROL
38-8A-1 Definition of terms.
38-8A-2 "Land-disturbing activity" defined.
38-8A-3 Commission guidelines for erosion and sediment control--Citizen participation.
38-8A-4 Content of guidelines.
38-8A-5 Information and standards used as basis of guidelines.
38-8A-6 District standards for erosion and sediment control--Local government consulted--Time--Fragile land designation.
38-8A-7 38-8A-7. Repealed by SL 1997, ch 226, § 3
38-8A-8 Hearing on proposed standards or revisions--Publication of notice.
38-8A-9 Transmittal of proposed standards to commission for review.
38-8A-10 Review of standards by commission--Recommendations as to changes.
38-8A-11 Adoption of conservation standards by districts--Cooperation with other local units.
38-8A-12 Governing board resolution or voter petition for revision of conservation standards.
38-8A-12.1 Filing of petition--Submission of standards to election unless supervisors approve revision.
38-8A-12.2 Election procedures.
38-8A-13 District standards to be met by activities on publicly owned lands.
38-8A-14 Enforcement of standards under contract with public agency.
38-8A-15 Issuance of permits by commission or districts prohibited.
38-8A-16 Permit-issuing authorities to require compliance with district conservation standards.
38-8A-17 Land-disturbing activity plans, applications, and reports not required if standards not violated--Plan required for conversion of fragile land.
38-8A-18 Violation of adopted standards by land-disturbing activities--Control plan required--District approval--Implementation of plan.
38-8A-18.1 Noncompliance--Penalties.
38-8A-19 Variances to allow additional time for compliance.
38-8A-20 Petition to allege violation of chapter--Investigation and action by petitioned agency.
38-8A-21 Injunctive or other relief to enforce chapter.
38-8A-22 Dust blowing and soil erosion--Owner or operator to prevent.
38-8A-23 Blowing soil--Investigation and order for prevention by conservation district board.
38-8A-24 Emergency orders--Issuance--Posting.
38-8A-25 Preventive treatment--Grounds for performance by conservation district board.
38-8A-26 Assessment against land treated by board--Promulgation of rules.
38-8A-27 Disposition of assessment collections--Collection fee prohibited.
38-8A-28 Cooperation with federal, state, and local agencies to prevent erosion.
38-8A-29 Annual report of violations.
38-8A-1. Definition of terms.
Terms as used in this chapter mean:
(1) "Commission," the State Conservation Commission established by § 38-7-3;
(2) "Conservation standards" or "standards," soil loss tolerance limits as developed pursuant to this chapter;
(3) "Districts," conservation districts established pursuant to chapter 38-8;
(4) "Person," a person as that term is defined by § 2-14-2 and also any public agency or political subdivision of this state, any interstate body, or any other legal entity;
(5) "Guidelines," recommendations of the commission to the conservation districts not possessing the force or effect of rules or statute;
(6) "Permit-issuing authority," a municipality or other political subdivision normally responsible for granting or issuing zoning, subdivision, building, or drainage permits;
(7) "Silviculture," the science and art of managing forest resources for the timber, protection, recreation, wildlife, water, and aesthetic purposes.
Source: SL 1976, ch 242, § 1; SL 1997, ch 226, § 1.
38-8A-2. "Land-disturbing activity" defined.
The term, land-disturbing activity, as used in this chapter, means any clearing, tilling, grazing, grading, excavating, transporting, and filling of land, and the implementation of silviculture activities resulting in soil erosion from water or wind and the movement of sediments into any and all waters, public or private, on the surface of the ground, which are contained within, flow through or border lands in the state; or onto lands in the state. Land disturbing activities specifically regulated by other state agencies and that are subject to regulation under chapter 45-6B, chapter 34A-6, or chapter 34A-13, or which otherwise require plans for soil erosion and sediment damage control are exempt from the provisions of this chapter.
Source: SL 1976, ch 242, § 1 (4); SL 1997, ch 226, § 2.
38-8A-3. Commission guidelines for erosion and sediment control--Citizen participation.
The commission shall develop comprehensive state erosion and sediment control guidelines. These guidelines are to be developed with full opportunity for citizen participation in accordance with chapter 1-26.
Source: SL 1976, ch 242, § 2; SL 2024, ch 167, § 1.
38-8A-4. Content of guidelines.
The guidelines developed by the State Conservation Commission shall consist of recommended soil loss limits and suggested conservation practices.
Source: SL 1976, ch 242, § 4.
38-8A-5. Information and standards used as basis of guidelines.
The guidelines for carrying out the program shall be based upon the following:
(1) Relevant physical and developmental information concerning the watersheds and drainage basins of the state, including, but not limited to, data relating to land use, soils, hydrology, geology, size of land area being disturbed, proximate water bodies and their characteristics, transportation, and public facilities and services;
(2) Existing surveys of lands and waters as may be deemed appropriate by the State Conservation Commission or required by any applicable law to identify areas, including multijurisdictional and watershed areas, with critical erosion and sediment problems; and
(3) Conservation standards for various types of soils and land uses, which standards shall include criteria, techniques, and methods for the control of erosion and sediment resulting from land-disturbing activities.
Source: SL 1976, ch 242, § 3.
38-8A-6. District standards for erosion and sediment control--Local government consulted--Time--Fragile land designation.
The supervisors of each district in the state, in cooperation and consultation with counties, municipalities, and other affected units of local government shall, within twelve months after the adoption of the state guidelines, develop proposed district conservation standards. These standards may designate, as fragile land, any area of the district that:
(1) Is Class IVe, VI, VII, or VIII, according to the United States Department of Agriculture classification system, as described in Title 430, National Soil Survey Handbook, Part 622 Interpretive Groups, Land Capability Classification, (June 2020); and
(2) Is so erosive as to cause a public hazard when converted to cropland use.
Source: SL 1976, ch 242, § 5; SL 1984, ch 263, § 8; SL 2024, ch 167, § 2.
38-8A-8. Hearing on proposed standards or revisions--Publication of notice.
Before adopting or revising conservation standards, a district shall conduct a public hearing on the proposed standards or revisions. Notice of such hearing shall be published once a week for at least two successive weeks in a newspaper of general circulation in the area affected, giving the time and place, when and where such hearing shall be held, and inviting all interested persons to appear and be heard.
Source: SL 1976, ch 242, § 10.
38-8A-9. Transmittal of proposed standards to commission for review.
Upon the development of proposed standards as provided by § 38-8A-6, such standards shall be forwarded to the State Conservation Commission for review and comment.
Source: SL 1937, ch 19, § 7; SDC 1939, § 4.1509; SL 1947, ch 12; SL 1953, ch 7, § 2; SDC Supp 1960, § 4.1509 (2); SDCL, § 38-8-88; SL 1968, ch 1, § 7; SL 1976, ch 242, § 6.
38-8A-10. Review of standards by commission--Recommendations as to changes.
The State Conservation Commission shall, within six months of receipt of a district's proposed standards, review and recommend any changes the commission deems necessary to the success of the district program.
Source: SL 1976, ch 242, § 7.
38-8A-11. Adoption of conservation standards by districts--Cooperation with other local units.
To carry out its program, each district, in cooperation with other local units of government, shall, within three months after the guidelines have been reviewed by the commission, adopt conservation standards consistent with the control of erosion and sediment resulting from land-disturbing activities.
Source: SL 1976, ch 242, § 8.
38-8A-12. Governing board resolution or voter petition for revision of conservation standards.
Revision of the conservation standards, in whole or in part, may be proposed by the conservation district governing board or by a petition signed by the number of voters equal to ten percent of the qualified voters in a district.
Source: SL 1976, ch 242, § 9; SL 1980, ch 269, § 1; SL 1981, ch 283; SL 2019, ch 179, § 3.
38-8A-12.1. Filing of petition--Submission of standards to election unless supervisors approve revision.
A petition pursuant to § 38-8A-12 shall be filed with the conservation district supervisors. The filing of a petition shall require the submission of the named conservation district standards to an election of the qualified voters of the district. However, if the supervisors approve the proposed revision before the election, the election shall not proceed.
Source: SL 1980, ch 269, § 2.
38-8A-12.2. Election procedures.
An election under the provisions of §§ 38-8A-12 and 38-8A-12.1 shall be conducted at the next general election within the counties comprising the territory of the conservation district. Unless otherwise provided for in this chapter, the conduct of any election held under §§ 38-8A-12 and 38-8A-12.1 shall be governed by the general election laws of South Dakota. The results of the election shall be certified to the conservation district by the county commission of each county in which the election is conducted.
Source: SL 1980, ch 269, § 3; SL 1997, ch 226, § 4.
38-8A-13. District standards to be met by activities on publicly owned lands.
If proposed land-disturbing activities are to be performed on state lands or by or on behalf of a state or local unit of government, plans for erosion and sediment control shall be in accordance with standards for erosion and sediment control established pursuant to this chapter.
Source: SL 1937, ch 19, § 13; SDC 1939, § 4.1515; SDCL, § 38-8-89; SL 1976, ch 242, § 13.
38-8A-14. Enforcement of standards under contract with public agency.
Land-disturbing activities, carried out under contract with an agency of the state or with any of its local political subdivisions, shall be subject to the enforcement action of such agency or subdivision.
Source: SL 1976, ch 242, § 16.
38-8A-15. Issuance of permits by commission or districts prohibited.
Neither the State Conservation Commission nor the conservation districts may issue permits under the provisions of this chapter.
Source: SL 1976, ch 242, § 12.
38-8A-16. Permit-issuing authorities to require compliance with district conservation standards.
After formal adoption of district conservation standards, each permit-issuing authority lying within the territorial limits of the conservation district, shall include provisions in its permit procedure to ensure that any proposed action relating to a permit is in compliance with the district conservation standards.
Source: SL 1976, ch 242, § 11.
38-8A-17. Land-disturbing activity plans, applications, and reports not required if standards not violated--Plan required for conversion of fragile land.
No person engaging in land-disturbing activities is required to prepare a plan, file an application or otherwise report these activities to the conservation district, except as provided for in § 38-8A-18. The district may require a conservation plan preceding the conversion to cropland of any land which has been designated fragile land as provided by § 38-8A-6.
Source: SL 1976, ch 242, § 14; SL 1984, ch 263, § 9; SL 1997, ch 226, § 5.
38-8A-18. Violation of adopted standards by land-disturbing activities--Control plan required--District approval--Implementation of plan.
Upon the determination by the conservation district, pursuant to § 38-8A-20, that a land-disturbing activity is violating adopted standards, the land disturber shall be required to prepare an erosion and sediment control plan within six months, and have the plan approved by the local conservation district. Upon approval of the plan by the conservation district, the land disturber shall be allowed six months to implement the plan.
Source: SL 1976, ch 242, § 15; SL 1997, ch 226, § 6.
38-8A-18.1. Noncompliance--Penalties.
Any person found to have engaged in land disturbing activities pursuant to § 38-8A-20 who intentionally refuses or fails to comply with the action directed by the petitioned agency, may lose eligibility for financial assistance from any state agency or political subdivision of the state involved in natural resources. If a state agency denies financial assistance to any person pursuant to this section, such denial is appealable pursuant to chapter 1-26.
Source: SL 1997, ch 227, § 1.
38-8A-19. Variances to allow additional time for compliance.
The conservation districts or permit-issuing authority may, in carrying out their responsibilities under this chapter, grant a variance to any land disturber to allow additional time in meeting the requirements of this chapter.
Source: SL 1976, ch 242, § 19.
38-8A-20. Petition to allege violation of chapter--Investigation and action by petitioned agency.
Any person who is adversely affected by land-disturbing activities may file a petition with the conservation districts or with the permit-issuing authority having jurisdiction thereof, alleging a violation of this chapter. The petitioned agency shall investigate and determine the validity of the petition. The petitioned agency shall, within two months after receipt of the petition, take appropriate action and advise the petitioner of its disposition of his petition.
Source: SL 1976, ch 242, § 17.
38-8A-21. Injunctive or other relief to enforce chapter.
Either a permit-issuing authority, or a district may, upon petition or its own volition, in the enforcement of its orders, commence an action in circuit court for an injunction or other appropriate relief to enforce the provisions of this chapter.
Source: SL 1937, ch 19, § 10; SDC 1939, § 4.1512; SDCL, § 38-8-84; SL 1976, ch 242, § 18.
38-8A-22. Dust blowing and soil erosion--Owner or operator to prevent.
The owner or operator of real property in this state shall prevent dust blowing and soil erosion, as nearly as can be done, by practices which will prevent or minimize blowing dust and erosion of the soil. If dust blowing is evident, such practices shall include, to the extent practicable, leaving stubble residue on top of the soil.
Source: SL 1984, ch 263, § 1.
38-8A-23. Blowing soil--Investigation and order for prevention by conservation district board.
If the board of supervisors of any district is advised, in a written or electronic form, that soil is blowing from any land, or if any land in the county, roads, or public property, is being damaged, as the result of blowing soil, the board must inspect the land. If the board finds soil is blowing from the land, in excess of local conservation district standards, to the point that it is injurious to other land, roads, or public property, the board must determine what can be done to prevent or lessen the blowing of soil from the land. If the board finds, after consulting with the commission, if appropriate, that the blowing can be prevented or lessened by treatment of the soil, the board must issue an order to the owner of record, and to the operator, if known to the board, stating the treatment required, and the date the treatment is to be started and completed.
Source: SL 1984, ch 263, § 2; SL 2024, ch 167, § 3.
38-8A-24. Emergency orders--Issuance--Posting.
Upon a finding by the board of supervisors that an emergency exists, the board of supervisors shall notify the county commissioners who shall issue an order to each of the persons at the address shown on the records of the county director of equalization. The order shall be issued by registered mail or as provided by the South Dakota Rules of Civil Procedure for the service of summons. The order shall also be posted in a public place in the county courthouse in the county in which the land is located.
Source: SL 1984, ch 263, § 3.
38-8A-25. Preventive treatment--Grounds for performance by conservation district board.
The board may perform the treatment ordered pursuant to § 38-8A-24 if the person named in the order fails to commence treatment within three days from the date of mailing, posting, or serving of notice, or at a later time specified by the order. The board may also perform the treatment if:
(1) The treatment is not performed in the manner and to the extent specified;
(2) Prior to the expiration date fixed in the order, the person named in the order advises the board he cannot or does not intend to accomplish the work.
Source: SL 1984, ch 263, § 4.
38-8A-26. Assessment against land treated by board--Promulgation of rules.
Upon the completion of the treatment performed pursuant to § 38-8A-25, the board of supervisors shall determine the land so benefited and notify the board of county commissioners, who shall assess against that land the cost of the treatment. The assessment may be made only against that portion of any tract of land which is the source of the wind or soil erosion.
Except as otherwise provided in this section, the assessment may not exceed the actual cost of the treatment or thirty-seven dollars per acre, whichever is less.
Beginning January 1, 2021, the commission may, by rules promulgated in accordance with chapter 1-26, annually increase the maximum assessment per acre authorized by this section by the lesser of:
(1) Three percent; or
(2) The rate of inflation for the preceding calendar year, as established by the United States Department of Labor Bureau of Labor Statistics.
The resolution of assessment shall be recorded in the minutes of the board of county commissioners, the original delivered by the clerk of the board to the county director of equalization, and a copy sent by registered mail to the landowner at the address shown on the records of the county director of equalization and to the operator.
Source: SL 1984, ch 263, § 5; SL 2020, ch 177, § 1.
38-8A-27. Disposition of assessment collections--Collection fee prohibited.
All amounts collected shall be transmitted to the county treasurer, who shall credit the money to the local conservation district. The county treasurer may not collect any fees for the collection of the assessments.
Source: SL 1984, ch 263, § 6.
38-8A-28. Cooperation with federal, state, and local agencies to prevent erosion.
The board of supervisors of any conservation district where land is being eroded may enter into any agreement with the federal government or any agency thereof, the State of South Dakota or any agency thereof, or any other conservation district, or other county or counties, for cooperation in preventing or attempting to prevent soil erosion by wind.
Source: SL 1984, ch 263, § 7.
38-8A-29. Annual report of violations.
The conservation districts shall file with the Conservation Commission an itemized annual report noting the number and nature of violations of this chapter. The report shall be filed within sixty days after the end of the conservation district's fiscal year.
Source: SL 1997, ch 226, § 7.
38-10-1
Policy of state.
38-10-2
Definition of terms.
38-10-3
Wheat commission--Members--Terms of office.
38-10-3.1
Independent functions retained by commission.
38-10-4
Qualifications of appointive members of commission.
38-10-5
Supervision of executive director.
38-10-6
Areas represented by appointive members of commission.
38-10-7
Terms of office of appointive members of commission--Vacancies.
38-10-8
Removal of wheat commission member.
38-10-9
Ex officio members of wheat commission--No vote.
38-10-10
Repealed.
38-10-11
Officers of wheat commission--Meetings.
38-10-12
Appointment of executive director--Compensation.
38-10-13
Repealed.
38-10-14
Powers of commission.
38-10-15
Formulation of general policies and programs for wheat promotion.
38-10-16
Wheat research and market development.
38-10-17
Research restricted to cooperation with other agencies.
38-10-18
Education and publicity program.
38-10-19
Cooperation with public and private organizations--Contracts.
38-10-20
Rules and regulations adopted by commission.
38-10-21
Commission records kept.
38-10-22
Promotional fee on wheat sold through commercial channels--Collection from first
purchaser.
38-10-23
Sales to federal government exempt from fee.
38-10-24
Fee applicable to wheat stored or sold outside state--Collection from grower.
38-10-25
Proof of purchase delivered by purchaser to grower--Contents.
38-10-26
Alteration of proof of purchase documents as misdemeanor.
38-10-27
Quarterly reports by wheat purchasers--Payment of fee.
38-10-28
Fee deducted when loan made by federal agency--Federal forms accepted in lieu of
invoice.
38-10-29
Supplemental and alternate forms used by commodity credit corporation.
38-10-30
Use by Commodity Credit Corporation of identification numbers--Access of state
officials to records.
38-10-31
Fee paid at time of federal loan as complete satisfaction.
38-10-32
Minor errors in fee collection overlooked.
38-10-33
Assessment of fee by director on failure to file report--Penalty--Time of payment.
38-10-34
Application for refund of fee erroneously collected--Time for refund--Waiver by
failure to file claim.
38-10-35
Deposit and appropriation of fees.
38-10-36
Repealed.
38-10-37
Violation of chapter as misdemeanor.
38-10-38
Citation of chapter.
38-10-39
Commission financial reports--Annual audit.
38-10-40
Liability for omissions.
38-10-41
Commission may contract with Public Utilities Commission to inspect assessment
and checkoff records.
38-10-1. Policy of state.
It is hereby declared to be the public policy of the State of South Dakota to protect and foster the health, prosperity, and general welfare of its people by protecting and stabilizing the wheat industry and the economy of the areas producing wheat. The wheat commission established by § 38-10-3 shall be the agency of the State of South Dakota for such purpose.
Source: SL 1961, ch 11, § 9.
38-10-2. Definition of terms.
Terms used in this chapter mean:
(1) "Commercial channels," the sale of wheat for any use, when sold to any commercial buyer, dealer, processor, cooperative, or to any person, public or private, who resells any wheat or product produced from wheat;
(2) "Commission" or "wheat commission," the Wheat Utilization, Research and Market Development Commission;
(3) "First purchaser," any person, public or private corporation, or partnership buying, accepting for shipment (either in state or out of state), or otherwise acquiring the property in or to wheat from a grower. The term includes a mortgagee, pledgee, lienor, or other person, public or private, having a claim against the grower, if the actual or constructive possession of the wheat is taken as part payment or in satisfaction of the mortgage, pledge, lien, or claim;
(4) "Grower," anyone personally engaged in growing wheat, including both the owner and tenant jointly, a person, partnership, limited liability company, association, corporation, cooperative, trust, sharecropper, and any other business units, devices, and arrangements;
(5) "Participating grower," a grower who has not requested a refund from the payment of the promotional fee for the past three years; and
(6) "Net market price," the sale price received by a grower for wheat after adjustment for any premium or discount based on grading or quality factors.
Source: SL 1961, ch 11, § 3; SL 1993, ch 302, § 1; SL 1994, ch 351, § 90; SL 2014, ch 193, § 1.
38-10-3. Wheat commission--Members--Terms of office.
There is hereby established a wheat commission for the utilization, research, and market development of wheat grown in South Dakota. The commission shall be composed of five members who shall be participating growers. The members of the commission shall be appointed by the Governor. Nominations for appointments shall be submitted to the Governor by wheat producers of the state.
The terms of members begin on October thirty-first of the calendar year in which the Governor appoints the member, unless otherwise designated by the Governor. The appointee's term is for three years and expires on October thirtieth in the third year of appointment.
Source: SL 1961, ch 11, §§ 2, 4 (4); SL 1993, ch 302, § 2; SL 2012, ch 16, § 23; SL 2013, ch 176, § 16; SL 2015, ch 203, § 12.
38-10-3.1. Independent functions retained by commission.
The Wheat Utilization, Research and Market Development Commission shall have the quasi-judicial, quasi-legislative, advisory, other administrative and special budgetary functions (as defined in § 1-32-1) vested in it.
Source: SL 1973, ch 2, § 134; SL 1993, ch 302, § 3.
38-10-4. Qualifications of appointive members of commission.
The wheat commission shall be composed of five members who:
(1) Are landowning residents of South Dakota;
(2) Are at least twenty-five years of age and residents of South Dakota;
(3) Have been actually engaged in growing wheat in this state for a period of at least five years;
(4) Derive a substantial portion of their income from growing wheat; and
(5) Are participating growers.
Source: SL 1961, ch 11, § 4 (2); SL 1993, ch 302, § 4.
38-10-5. Supervision of executive director.
With the exception of the ex officio members, the Governor shall appoint a commission to be known as the South Dakota Wheat Utilization, Research and Market Development Commission. The commission may appoint, advise, direct, and supervise an executive director of the Wheat Utilization, Research and Market Development Commission.
Source: SL 1961, ch 11, § 4 (1); SL 1973, ch 2, § 134; SL 1993, ch 302, § 5; SL 2013, ch 193, § 1.
38-10-6. Areas represented by appointive members of commission.
Two of the five members of the wheat commission referred to in §§ 38-10-4 and 38-10-5 shall be residents of and having farming operations in that area of the State of South Dakota west of the Missouri River; two of the members shall be residents of and having farming operations in that area of the State of South Dakota east of the Missouri River; and one member shall be selected as a member at large from the State of South Dakota. Members shall be selected with regard to representation of wheat classes and production in the state.
Source: SL 1961, ch 11, § 4 (3); SL 1993, ch 302, § 6.
38-10-7. Terms of office of appointive members of commission--Vacancies.
As the terms of office of appointees to the wheat commission expire, their successors shall be appointed by the Governor for a term of three years. Each member shall hold office until their successors are appointed and qualified. A member appointed to fill a vacancy occurring before the expiration of the term of a member separated from the commission for any cause, shall be appointed for the remainder of the term of the member whose office has been so vacated. No member may serve for more than four consecutive terms.
Source: SL 1961, ch 11, § 5; SL 1993, ch 302, § 7.
38-10-8. Removal of wheat commission member.
A member of the wheat commission shall be removable by the Governor for cause. In addition to all other causes, that a member ceases to be a resident of the state, live in the district from which he was appointed, or be actually engaged in growing wheat in the state shall be deemed sufficient cause for removal from office.
Source: SL 1961, ch 11, § 7.
38-10-9. Ex officio members of wheat commission--No vote.
Ex officio members of the wheat commission shall be the South Dakota secretary of agriculture and natural resources, the dean of agriculture of the South Dakota State University, and the president of the South Dakota Crop Improvement Association, such ex officio members not having a vote on the commission.
Source: SL 1961, ch 11, § 4 (2) (e); SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-10-11. Officers of wheat commission--Meetings.
The wheat commission shall elect a chairman, vice-chairman, secretary, and treasurer from among its members. The commission shall meet at least once every three months and at such other times as called by the chairman or by any two members of the commission.
Source: SL 1961, ch 11, § 8.
38-10-12. Appointment of executive director--Compensation.
The wheat commission may appoint a full-time executive director to carry out the provisions of this chapter. The executive director shall receive compensation as determined by the commission subject to § 38-10-14. The executive director may not be one of the appointed commission members.
Source: SL 1961, ch 11, § 2; SL 1973, ch 2, § 134; SDCL Supp, § 38-10-3.1; SL 1993, ch 302, § 8; SL 2013, ch 193, § 2.
38-10-14. Powers of commission.
In the administration of this chapter, the wheat commission may:
(1) Expend the funds collected pursuant to this chapter;
(2) Appoint, discharge, fix compensation for and prescribe the duties of such personnel as it may deem necessary subject to Bureau of Human Resources and Administration guidelines;
(3) Lease, purchase, own, equip, maintain, operate, and dispose of equipment in the commission office;
(4) Accept donations of funds, property, services, and other assistance from public, private, and other sources for the purpose of aiding and promoting the work and objectives of the commission;
(5) Appoint an attorney who shall act for the commission when needed;
(6) Establish an administrative office for the wheat commission in the State of South Dakota at a place suitable for the furtherance of this chapter.
Source: SL 1961, ch 11, § 10; SL 1993, ch 302, § 10; SL 2012, ch 23, § 99; SL 2013, ch 193, § 3; SL 2024, ch 1 (Ex. Ord. 24-1), § 35, eff. Apr. 8, 2024.
38-10-15. Formulation of general policies and programs for wheat promotion.
In connection with and in furtherance of the policy and purpose declared in § 38-10-1, the wheat commission shall have the power to formulate the general policies and programs of the State of South Dakota respecting the discovery, promotion, and development of markets and industries for the utilization of wheat grown within the State of South Dakota.
Source: SL 1961, ch 11, § 9 (1).
38-10-16. Wheat research and market development.
In connection with and in furtherance of the policy and purpose declared in § 38-10-1, the wheat commission may conduct, in addition to the things enumerated, any other program for the utilization, research, and market development of wheat grown in the State of South Dakota.
Source: SL 1961, ch 11, § 9 (5); SL 1993, ch 302, § 11.
38-10-17. Research restricted to cooperation with other agencies.
The wheat commission shall not be authorized to set up research or development units or agencies of its own, but shall limit its activity to cooperation and contracts with proper local, state, or national organizations, public or private, in carrying out the purposes of this chapter.
Source: SL 1961, ch 11, § 19.
38-10-18. Education and publicity program.
In connection with and in furtherance of the policy and purpose declared in § 38-10-1, the wheat commission shall have the power to adopt and devise a program of education and publicity.
Source: SL 1961, ch 11, § 9 (2).
38-10-19. Cooperation with public and private organizations--Contracts.
In connection with and in furtherance of the policy and purpose declared in § 38-10-1, the wheat commission may cooperate with local, state, or national organizations, whether public or private, in carrying out the purposes of this chapter, and may enter into such contracts as may be necessary.
Source: SL 1961, ch 11, § 9 (3); SL 1993, ch 302, § 12.
38-10-20. Rules and regulations adopted by commission.
In connection with and in furtherance of the policy and purpose declared in § 38-10-1, the wheat commission may promulgate rules pursuant to chapter 1-26 concerning:
(1) The procedures for obtaining a declaratory ruling;
(2) The procedures for fee collection for wheat sold either in-state or out-of-state;
(3) The procedures for obtaining a refund of the fee; and
(4) The procedures for collecting delinquent fees and assessing penalties.
Source: SL 1961, ch 11, § 9(4); SL 1986, ch 326, § 14.
38-10-21. Commission records kept.
All records of the wheat commission shall be kept at least three years.
Source: SL 1961, ch 11, § 16 (3).
38-10-22. Promotional fee on wheat sold through commercial channels--Collection from first purchaser.
There is hereby assessed a promotional fee of four-tenths of one percent of the value of the net market price per bushel upon all wheat sold through commercial channels in the State of South Dakota. The fee shall be assessed and imposed on the grower at the time of sale or delivery, and shall be collected and remitted by the first purchaser in the manner described by the commission pursuant to administrative rules promulgated pursuant to chapter 1-26. No wheat is subject to the fee more than once.
Source: SL 1961, ch 11, § 11; SL 1979, ch 264, § 1; SL 1985, ch 309, § 1; SL 1988, ch 311; SL 1990, ch 318, § 1; SL 2005, ch 210, § 1; SL 2014, ch 193, § 2.
38-10-23. Sales to federal government exempt from fee.
The fee, herein levied and imposed by the provisions of § 38-10-22, shall not apply to the sale of wheat to the federal government for ultimate use or consumption by the people of the United States, where the State of South Dakota is prohibited from imposing such fee by the Constitution of the United States and laws enacted pursuant thereto.
Source: SL 1961, ch 11, § 14.
38-10-24. Fee applicable to wheat stored or sold outside state--Collection from grower.
The fee established pursuant to § 38-10-22, shall be deducted, as provided by this chapter, whether such wheat is stored or sold in this or any other state. However, if agreements have not been made with dealers outside of the state for collecting the fee, the grower shall remit the fee to the wheat commission, as provided in administrative rules promulgated pursuant to chapter 1-26 on all wheat so sold by him outside the state.
Source: SL 1961, ch 11, § 13; SL 1993, ch 302, § 13.
38-10-25. Proof of purchase delivered by purchaser to grower--Contents.
The purchaser, at the time of settlement of the purchase, shall make and deliver a proof of purchase to the grower. This proof of purchase document may be a settlement sheet, a check stub, or other legible document showing:
(1) The name of the grower and seller;
(2) The name and address of the purchaser;
(3) The number of bushels of wheat sold;
(4) The date of the purchase; and
(5) The net market price.
Source: SL 1961, ch 11, § 15 (1); SL 1990, ch 318, § 2; SL 2014, ch 193, § 3.
38-10-26. Alteration of proof of purchase documents as misdemeanor.
The proof of purchase documents, referred to in § 38-10-25, shall be legibly written and have no corrections or erasures on the face thereof. Any person who alters any part of any proof of purchase documents in an attempt to defraud the wheat commission is guilty of a Class 2 misdemeanor.
Source: SL 1961, ch 11, § 15 (4); SL 1977, ch 190, § 302; SL 1993, ch 302, § 14.
38-10-27. Quarterly reports by wheat purchasers--Payment of fee.
The purchaser shall render and have on file a report with the commission by the thirtieth day following the end of each calendar quarter. The report shall be on forms provided by the commission and shall display the number of bushels of wheat purchased in the preceding quarter and the amount of fee being remitted. If no wheat was purchased, that information shall be so listed on the report.
Source: SL 1961, ch 11, § 15 (2); SL 1979, ch 264, § 2; SL 1990, ch 318, § 3.
38-10-28. Fee deducted when loan made by federal agency--Federal forms accepted in lieu of invoice.
In the case of a pledge or mortgage of wheat as security for a loan under the federal price support program, the fee assessed by § 38-10-22 shall be deducted from the proceeds of such loans at the time the loans are made, or be deducted thereafter by agencies of the federal government, and producer's note and loan agreement (commodity loan Form B) or producer's note and supplemental loan agreement (commodity loan Form A) or delivery instructions (commodity purchaser Form 3) issued by the federal agency to the grower are hereby approved as fulfilling the requirements for invoices, and the forms herein approved shall be deemed to constitute proof of payment of such promotional fee on the wheat listed thereon.
Source: SL 1961, ch 11, § 12 (1).
38-10-29. Supplemental and alternate forms used by commodity credit corporation.
Forms supplemental or alternate to those approved in § 38-10-28 which may be proposed by the Commodity Credit Corporation and contain the necessary information may be used without revision of this chapter.
Source: SL 1961, ch 11, § 12 (2).
38-10-30. Use by Commodity Credit Corporation of identification numbers--Access of state officials to records.
The Commodity Credit Corporation's use of identification numbers in lieu of the name of the grower from whom the fee was collected is hereby approved, such approval being in consideration of assurance received from the Commodity Credit Corporation that authorized officials of the State of South Dakota will have access at all reasonable times to records in the county agricultural stabilization and conservation offices showing the names of growers to whom such identification numbers have been assigned.
Source: SL 1961, ch 11, § 12 (3).
38-10-31. Fee paid at time of federal loan as complete satisfaction.
If such wheat, described in § 38-10-28, remains in farm storage for the duration of such pledge or mortgage, the promotional fee so paid at the time the loan was made shall be deemed a complete satisfaction of the promotional fee liability unless upon subsequent actual delivery of such wheat from farm storage in satisfaction of the pledge, or mortgage in the amount of one dollar or more, such underpayment being due solely for the necessity of estimating the quantity of wheat so placed in farm storage.
Source: SL 1961, ch 11, § 12 (4).
38-10-32. Minor errors in fee collection overlooked.
In connection with the collection of the wheat promotional fee on Commodity Credit Corporation wheat loans disbursed and purchase agreement settlement made, undercollections or overcollections of the wheat promotional fee amounting to one dollar or less as a result of errors, will not require collection of the underpayment or refund of the overpayment by commodity credit corporation and their responsibility in such cases shall be waived.
Source: SL 1961, ch 11, § 12 (5).
38-10-33. Assessment of fee by director on failure to file report--Penalty--Time of payment.
If any person, business or entity, public or private, subject to the fee under § 38-10-22, fails to make a report and remittance when and as required in this chapter, the executive director of the wheat commission shall determine the amount of such fee according to his best judgment and information, which amount so fixed shall be prima facie correct, and such person so having failed to make such report shall, within ten days after notice of the amount of the fee so fixed and computed by the director is mailed to such person, pay said fee, together with a penalty of five percent on the amount of the fee or he may dispute the fee as fixed by the director and request the commission to hold a hearing to determine the amount of the fee and penalty to be imposed. No payment may be made until the commission enters its order determining the amount of such payment, but such shall be paid within ten days of notice of such decision.
Source: SL 1961, ch 11, § 15 (3); SL 1993, ch 302, § 15.
38-10-34. Application for refund of fee erroneously collected--Time for refund--Waiver by failure to file claim.
Any person, firm, or corporation subject to the fee provided in this chapter that objects to the collection of the fee may, within sixty days following the collection, apply to the wheat commission for a refund of the fee. Upon the return of the refund application, accompanied by a true, legible record of the invoices delivered by the purchaser to the grower, the commission shall, within thirty days, refund the net amount of the fee collected to the grower. If no request for refund has been made within sixty days after the collection of the fee, the grower shall be conclusively presumed to have agreed to the deduction.
Source: SL 1961, ch 11, § 17; SL 1985, ch 309, § 2; SL 1990, ch 318, § 4.
38-10-35. Deposit and appropriation of fees.
All moneys received on behalf of the wheat commission from the fees assessed in § 38-10-22, shall be deposited in a special revenue fund created in the state treasury and shall be continuously appropriated to the commission. Expenditures of these funds shall be disbursed solely by order of the commission in accordance with the provisions of Title 4 and the provisions of this chapter.
Source: SL 1961, ch 11, § 18; SL 1975, ch 62, § 2; SL 1993, ch 302, § 16.
38-10-37. Violation of chapter as misdemeanor.
Any person violating any of the provisions of this chapter is guilty of a Class 2 misdemeanor.
Source: SL 1961, ch 11, § 20; SL 1977, ch 190, § 303.
38-10-38. Citation of chapter.
This chapter may be cited as the South Dakota Wheat Resources Act.
Source: SL 1961, ch 11, § 1.
38-10-39. Commission financial reports--Annual audit.
The commission shall annually submit a financial report and informational budget to the secretary of agriculture and natural resources in accordance with § 4-7-7.2. Accounts of the commission are subject to annual audit by the auditor general.
Source: SL 1993, ch 302, § 17; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-10-40. Liability for omissions.
No liability may be imposed upon the State of South Dakota for any acts, or omissions of the commission pursuant to this chapter.
Source: SL 1993, ch 302, § 18.
38-10-41. Commission may contract with Public Utilities Commission to inspect assessment and checkoff records.
The commission may contract with the Public Utilities Commission to inspect the records of licensed grain buyers to determine compliance with the assessment and checkoff requirements of this chapter. The contract shall cover the grain buyers to be inspected and the amount the commission shall reimburse the Public Utilities Commission for the inspections.
Source: SL 1996, ch 245, § 1; SL 2009, ch 196, § 1.
38-11-1
Appointment and terms of board members--Vacancies.
38-11-1.1
Direction and supervision by College of Agriculture and Biological Sciences--Independent functions retained by board.
38-11-2
Composition and representation on board--Recommendations for appointment.
38-11-3
Oath of board members--Officers of board.
38-11-4
Meetings of board.
38-11-5
Repealed.
38-11-6
Official seed certifying agency for state.
38-11-7
Standards for certification--Rules and regulations.
38-11-8
Rules, regulations, and orders for execution of powers.
38-11-1. Appointment and terms of board members--Vacancies.
The State Seed Certification Board shall consist of five members appointed by the secretary of agriculture and natural resources, with terms of office so arranged that one and only one expires each year, and as each expires the succeeding term shall be for a period of five years and until a successor is appointed and qualifies. Vacancies may be filled by appointment by the secretary of agriculture and natural resources for the balance of the unexpired term.
Source: SL 1947, ch 18, § 1; SL 1949, ch 12; SDC Supp 1960, § 4.10B01; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-11-1.1. Direction and supervision by College of Agriculture and Biological Sciences--Independent functions retained by board.
The Seed Certification Board shall be administered under the direction and supervision of the College of Agriculture and Biological Sciences at South Dakota State University and the dean of the college, but shall retain the quasi-judicial, quasi-legislative, advisory, other nonadministrative and special budgetary functions, as defined in § 1-32-1, otherwise vested in it and shall exercise those functions independently of the dean and the college.
Source: SL 1973, ch 2, § 192; SL 2006, ch 205, § 2.
38-11-2. Composition and representation on board--Recommendations for appointment.
All members of the State Seed Certification Board shall be electors of the state; two shall be persons recommended for appointment by the South Dakota Crop Improvement Association; one shall be a representative of the State Department of Agriculture and Natural Resources; two shall be persons recommended by the dean of agriculture at South Dakota State University. The members of the board shall be appointed so as to represent all areas of the state. The secretary of agriculture and natural resources shall make these appointments from lists of two or more names submitted for each position on the board.
Source: SL 1947, ch 18, § 1; SL 1949, ch 12; SDC Supp 1960, § 4.10B01; SL 2006, ch 205, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-11-3. Oath of board members--Officers of board.
The members of the State Seed Certification Board shall qualify by taking and subscribing to the oath of office required by civil officers of the state.
The board shall elect a president, vice-president, and secretary from among their number for a term of one year, beginning at the annual meeting at which they are elected.
Source: SL 1947, ch 18, § 1; SL 1949, ch 12; SDC Supp 1960, § 4.10B01.
38-11-4. Meetings of board.
The State Seed Certification Board shall hold its meetings at such times and places as it designates. The board shall hold at least one, but not more than four regular meetings each year, including the annual meeting. At the annual meeting the president, vice-president, and secretary shall be elected for the ensuing year. The president of the board may call special meetings whenever the president judges it necessary.
Source: SL 1947, ch 18, § 2; SDC Supp 1960, § 4.10B02; SL 2006, ch 205, § 3.
38-11-6. Official seed certifying agency for state.
The secretary of agriculture and natural resources and the dean of the College of Agriculture and Biological Sciences at South Dakota State University shall designate the official seed certifying agency for the state. The State Seed Certification Board may designate one or more public or private entities to perform necessary seed certification activities under the supervision of the board. The board may designate separate official certification agencies for various types or classifications of seed or propagating materials. The board shall notify the secretary and the dean of any designations made pursuant to this section.
Source: SL 1947, ch 18, § 3; SDC Supp 1960, § 4.10B03 (1); SL 1982, ch 280; SL 2006, ch 205, § 4; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-11-7. Standards for certification--Rules and regulations.
The State Seed Certification Board may promulgate rules pursuant to chapter 1-26 to regulate the production, processing, and distribution of certified seed and to establish standards for certified seed. The term, seed, as used in this section includes all propagating materials.
Source: SL 1947, ch 18, § 3; SDC Supp 1960, § 4.10B03 (1), (2); SL 1986, ch 326, § 15; SL 1990, ch 319.
38-11-8. Rules, regulations, and orders for execution of powers.
The State Seed Certification Board is hereby authorized to make orders for the execution of the powers conferred upon it and the performance of its duties, so as to effectuate, enforce, and carry out promptly and efficiently the provisions of the statutes relating to its duties, powers, and jurisdiction. The board may likewise amend or repeal all such orders.
Source: SL 1947, ch 18, § 3; SDC Supp 1960, § 4.10B03 (2) (a); SL 1986, ch 326, § 16.
38-12A-1
Definition of terms.
38-12A-2
Label required for containers of agricultural seeds--Contents.
38-12A-3
Label required for containers of lawn and turf seed--Contents.
38-12A-4
Label required for containers of vegetable seeds in planting devices--Contents.
38-12A-5
Label required for containers of flower seeds or flower seeds in planting devices--Contents.
38-12A-6
Label required for containers of tree and shrub seeds--Contents--Exception.
38-12A-7
Contents of label for treated seed.
38-12A-8
Seed sold in bulk--Display of label on container--Customer copy--Exception.
38-12A-9
Seed test to determine label information.
38-12A-10
Exceptions to labeling requirements.
38-12A-11
Seed dealers permit required--Exception--Expiration--Fee.
38-12A-11.1
Seed fund established--Purpose--Appropriations.
38-12A-12
Contents of advertisement by person excepted from seed permit.
38-12A-13
Records of seed lots--File samples--Inspection--Use by secretary.
38-12A-14
Secretary provided copy of records and access to premises.
38-12A-15
Modification, revocation, or refusal to renew permit for violations.
38-12A-16
Unlawful sale, offer for sale, or transportation for sale of seed within state--Violation
as misdemeanor.
38-12A-17
Additional prohibited acts--Violation as misdemeanor.
38-12A-18
Additional civil penalty.
38-12A-19
Powers of secretary.
38-12A-20
Promulgation of rules by secretary.
38-12A-21
Right of consumer to submit claim to arbitration.
38-12A-22
Right of seedsman, seed producer, or seed dealer to submit claim to arbitration--Statutes of limitations and legal proceedings tolled.
38-12A-23
Filing of complaint against seedsman, seed producer, or seed dealer--Time limitation--Filing of answer.
38-12A-24
Referring of complaint to arbitration committee--Discontinuation of investigation.
38-12A-25
Appointment of committee members--Election of chairman and secretary.
38-12A-26
Purpose of committee--Nonbinding report--Evidence in litigation.
38-12A-27
Session called by secretary or upon direction of chairman.
38-12A-28
Investigation by committee--Recommendation--Hearings.
38-12A-29
Investigation by majority of committee directed by chairman--Summary.
38-12A-30
Members not compensated--Reimbursement for expenses.
38-12A-31
Federal permits for introduction of organisms and products produced through genetic
engineering authorized for use in state.
38-12A-1. Definition of terms.
Terms used in this chapter mean:
(1) "Advertisement," all representation, other than those on the label, disseminated in any manner or by any means, relating to seed within the scope of this chapter;
(2) "Agricultural seeds," the seeds of grass, forage, cereal, oil, fiber, and other kinds of crop seed commonly recognized within this state as agricultural seed and combinations of such seeds;
(3) "Certified seed," any seed of specific genetic purity and identity that has been officially certified by a certifying agency;
(4) "Certified seed technologist," any seed technologist who has been certified by the Association of Official Seed Analysts;
(5) "Certifying agency," an agency authorized by chapter 38-11 to officially certify seed to assure the genetic purity and identity of the seed certified;
(6) "Conditioning," drying, cleaning, scarifying, and other operations which could change the purity or germination of the seed and require the seed lot to be retested to determine the label information;
(7) "Consumer," any person who purchases or otherwise obtains seed for sowing, but not for resale;
(8) "Dormant seed," any viable seed, other than hard seed, which fails to germinate when provided favorable conditions for the kind of seed in question;
(9) "Flower seed," the seeds of herbaceous plants grown for their blooms, ornamental foliage, or other ornamental parts and commonly known and sold under the name flower seeds in this state;
(10) "Germination," the emergence and development from the seed embryo of those essential structures which are indicative of the ability to produce a normal plant under favorable conditions;
(11) "Hard seed," any seed which remains hard at the end of a prescribed germination test period because it has not absorbed water due to an impermeable seed coat;
(12) "Hybrid," includes the first generation seed of a cross produced by controlling the pollination and by combining:
(a) Two or more inlines;
(b) One inbred or single cross with an open pollinated variety;
(c) Two varieties or species, except open-pollinated varieties of corn (Zea mays). Subsequent generations from such crosses may not be regarded as hybrids. Hybrid designations shall be treated as variety names;
(13) "Inert matter," all matter not seed which includes broken seeds, sterile florets, chaff, fungus bodies, and other material;
(14) "Kind," one or more related species or subspecies which singly or collectively is known by one common name;
(15) "Label," a tag or other written, printed or graphic representations, in any format whatsoever, accompanying or pertaining to any seed, whether in bulk or in containers purporting to set forth the information required on the label by this chapter;
(16) "Lawn and turf seeds," the seeds of grass commonly grown for ornamental purposes and commonly known and sold as lawn and turf seed;
(17) "Lot," a definite quantity of seed identified by a lot number or other mark, every portion or bag of which is uniform within recognized tolerances for the factors which appear in the labeling;
(18) "Mixture," a seed lot consisting of more than one kind;
(19) "Prohibited noxious weed seed," any weed seed which is prohibited from being present in seed, such as the seeds of weeds which are highly destructive and difficult to control by good cultural practice and the use of herbicides;
(20) "Pure seed," seed, exclusive of inert matter, and all other seed not of the kind or variety being considered;
(21) "Record," any and all information which relates to the origin, transport, treatment, germination, purity, kind, and variety of each lot of seed sold in this state. Such information includes seed samples and records of declaration, labels, purchases, sales, conditioning, bulking, treatment, handling, storage, analyses, tests, and examinations;
(22) "Registered seed technologist," any seed technologist who has been certified by the society of commercial seed technologists;
(23) "Restricted noxious weed seed," any weed seeds which are highly objectionable and difficult to control in specific crops, fields, lawns, and gardens of this state and which can be generally controlled by good cultural practices or the use of herbicides;
(24) "Secretary," secretary of the Department of Agriculture and Natural Resources;
(25) "Seed," all propagation materials, within the context of this chapter ultimately intended for planting purposes;
(26) "Seed dealer," any person who exposes seed for sale, maintains an unsold inventory and sells seed, or takes and fills orders for seed for a seedsman or seed producer but does not condition or label seed;
(27) "Seedsman," any person who purchases, conditions, labels, or sells seed as a major part of his business;
(28) "Seed producer," any person who labels and sells seed only of his own production;
(29) "Seizure," a legal process carried out by a court order pertaining to a definite amount of seed;
(30) "Stop sale," an administrative order provided by law, restraining the sale, use, disposition, and movement of a definite amount of seed;
(31) "Tetrazolium test or TZ test," a chemical test which indicates seed viability;
(32) "Treated seed," any seed that has received an application of a substance or that has been subjected to a procedure or coating, for which a claim is made or which is designed to reduce, control, or repel disease organism, insects or other pests which attack seed or seedlings;
(33) "Tree and shrub seeds," the seeds of woody plants commonly known and sold as tree and shrub seeds in this state;
(34) "Tolerance," the allowable deviation from any figure used on a label to designate the percentage of any component or the number of seeds given for the lot in question and is based on the law of normal variation from a mean;
(35) "Variety," a subdivision of a kind characterized by growth, yield, plant, fruit, seed, or other characteristics, by which it can be differentiated from other plants of the same kind;
(36) "Vegetable seed," the seeds of those crops which are grown in gardens and on truck farms and are generally known and sold under the name of vegetable or herb seed in this state;
(37) "Weed seeds," any seed of plants commonly recognized as weeds within this state including prohibited and restricted noxious weed seeds.
Source: SL 1988, ch 314, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-12A-2. Label required for containers of agricultural seeds--Contents.
Each container of agricultural seed which is sold, offered for sale, or exposed for sale, held for storage, or transported within this state with the intent to sell for sowing purposes shall bear or have attached in a conspicuous place a plainly written or printed label giving the following information:
(1) The name of the kind or kind and variety or kind and "variety not stated" for each agricultural seed component in excess of five percent of the whole and the percentage by weight of each in order of its predominance. Mixtures shall be listed on the label using the term "mixture," "mixed," or "mix";
(2) Hybrids shall be labeled as hybrids except if the pure seed contains less than seventy-five percent hybrid seed. If the percentage of the hybrid seed is greater than seventy-five percent, but less than ninety-five percent, the percentage of hybrid shall be labeled parenthetically following the variety;
(3) Lot number or other lot identification;
(4) Origin as to state or foreign country, if known, of perennials when grown in this state. If unknown, the label shall state that the origin is unknown;
(5) Percentage by weight of all weed seed;
(6) Name and rate of occurrence of each kind of restricted noxious weed seed, listed under the heading "noxious weed seeds";
(7) Percentage by weight of agricultural seeds other than those required to be named on label, listed under the heading "Other Crop";
(8) Percentage by weight of inert matter;
(9) For each named agricultural seed:
(a) Percentage of germination, exclusive of hard and dormant seed;
(b) Percentage of hard and dormant seed, if present;
(c) The additional statement "total germination and hard and dormant seed" may be stated if desired;
(d) The calendar month and year the test was completed to determine such percentages;
(10) Tetrazolium tests may be substituted for germination tests for the kinds and time prescribed by the secretary in accordance with § 38-12A-20;
(11) Name and address of the seedsman or seed producer who labeled the seed.
Source: SL 1988, ch 314, § 2.
38-12A-3. Label required for containers of lawn and turf seed--Contents.
Each container of lawn and turf seed which is sold, offered for sale, or exposed for sale, held for storage, or transported within this state with the intent to sell for sowing purposes shall bear or have attached in a conspicuous place a plainly written or printed label giving the following information:
(1) The name of the kind or kind and variety for each lawn and turf seed component in excess of five percent of the whole and the percentage by weight of each in order of its predominance. Mixtures shall be listed on the label using the term "mixture," "mixed," or "mix";
(2) Lot number or other lot identification;
(3) Percentage by weight of all weed seed;
(4) Name and rate of occurrence of each kind of restricted noxious weed seed, listed under the heading "noxious weed seeds";
(5) Percentage by weight of crop seeds other than those required to be named on label, if present, listed under the heading "other crop";
(6) Percentage by weight of inert matter;
(7) For each named lawn and turf seed:
(a) Percentage of germination, exclusive of hard and dormant seed;
(b) Percentage of hard and dormant seed, if present;
(c) The calendar month and year the test was completed to determine such percentages, or an expiration date, or the year for which the seed was packed for sale listed as "packed for __________";
(8) Name and address of the seedsman or seed producer who labeled the seed.
Source: SL 1988, ch 314, § 3.
38-12A-4. Label required for containers of vegetable seeds in planting devices--Contents.
Each container of vegetable seeds, or of vegetable seeds in preplanted containers, mats, tapes, or other planting devices, which is sold, offered for sale, or exposed for sale, held for storage, or transported within this state with the intent to sell for sowing purposes shall bear or have attached in a conspicuous place a plainly written or printed label giving the following information:
(1) The name of the kind and variety for each vegetable seed component in excess of five percent of the whole and the percentage by weight of each in order of its predominance. Mixtures shall be listed on the label using the term "mixture," "mixed," or "mix."
(2) Hybrids shall be labeled as hybrid except if the pure seed contains less than seventy-five percent hybrid seed. If the percentage of hybrid seed is greater that seventy-five percent but less than ninety-five percent the percentage of hybrid shall be labeled parenthetically following the variety;
(3) Lot number or other lot identification;
(4) Percentage by weight of all weed seed when present;
(5) Name and rate of occurrence of each kind of restricted noxious weed seed if present, listed under the heading "noxious weed seeds";
(6) Name and address of the seedsman or seed producer who labeled the seed;
(7) For vegetable seeds in packets as prepared for use in home gardens or household plantings or vegetable seeds in preplanted containers, mats, tapes, or other planting devices:
(a) The year for which the seed was packed for sale as "packed for ______" or the percentage germination and the calendar month and year the test was completed to determine such percentage, or an expiration date;
(b) For vegetable seeds which germinate less than the standards prescribed by the secretary pursuant to § 38-12A-20:
(i) Percentage of germination, exclusive of hard and dormant seed;
(ii) Percentage of hard and dormant seed, if present;
(iii) The words "Below standards" in not less than eight-point type;
(c) For seeds placed in a germination medium, mat, tape, or other device in such a way as to make it difficult to determine the quantity of seed without removing the seeds from the medium, mat, tape, or device, a statement to indicate the minimum number of seeds in the container;
(8) For each named vegetable seed in containers other than packets prepared for use in home gardens or household plantings and other than preplanted containers, mats, tapes, or other planting devices:
(a) Percentage germination exclusive of hard and dormant seed;
(b) Percentage of hard and dormant seed, if present;
(c) The calendar month and year the test was completed to determine such percentages.
Source: SL 1988, ch 314, § 4; SL 1989, ch 30, § 66.
38-12A-5. Label required for containers of flower seeds or flower seeds in planting devices--Contents.
Each container of flower seeds or flower seeds in preplanted containers, mats, tapes, or other planting devices which are sold, offered for sale, or exposed for sale, held for storage, or transported within this state with the intent to sell for sowing purposes shall bear or have attached in a conspicuous place a plainly written or printed label giving the following information:
(1) The name of the kind and variety for each flower seed or a statement of type and performance characteristics. Mixtures shall be listed on the label using the term "mixture," "mixed," or "mix";
(2) Hybrids shall be labeled as hybrids except if the pure seed contains less than seventy-five percent hybrid seed. If the percentage of hybrid seed is greater than seventy-five percent but less than ninety-five percent, the percentage of hybrid shall be labeled parenthetically following the variety;
(3) The percentage by weight of pure seed, except this may be omitted if that percentage meets standards prescribed by the secretary pursuant to § 38-12A-20;
(4) Lot number or other lot identification;
(5) Percentage by weight of all weed seed when present in flower seed;
(6) Name and rate of occurrence of each kind of restricted noxious weed seed if present, listed under the heading "noxious weed seeds";
(7) The year for which the seed was packed for sale listed as "Packed for ____," or the month and the year the percentages for germination were determined by test, or an expiration date;
(8) For flower seeds for which standard testing procedures are prescribed and which germinate less than the standard prescribed by the secretary pursuant to § 38-12A-20, the percentage of germination exclusive of hard and dormant seeds and the words "below standard" in not less that eight-point type;
(9) The name and address of the seedsman or seed producer who labeled the seed;
(10) For seeds placed in a germination medium, mat, tape or other device in such a way as to make it difficult to determine the quantity of seed without removing the seed from the medium, mat, tape, or device, a statement to indicate the minimum number of seeds in the container.
Source: SL 1988, ch 314, § 5.
38-12A-6. Label required for containers of tree and shrub seeds--Contents--Exception.
Each container of tree and shrub seed which is sold, offered for sale, or exposed for sale, or transported within this state for sowing purposes shall bear thereon or have attached hereto in a conspicuous place a plainly written or printed label or tag, giving the following information. However, labeling of tree and shrub seed supplied under contractual agreement may be by invoice accompanying the shipment or by an analysis tag attached to the invoice if each bag or other container is clearly identified by a lot number stenciled on the container or on the invoice if the seed is in bulk. Each bag or container that is not so identified must carry complete labeling:
(1) Common name of the species of seed and subspecies, if appropriate;
(2) The scientific name of the genus and species and subspecies, if appropriate;
(3) Lot number or other lot identification;
(4) Origin;
(a) For seed collected from a predominantly indigenous stand, the area of collection given by latitude and longitude, or geographic description, or political subdivision such as state or county;
(b) For seed collected from other than a predominantly indigenous stand, identify the area of collection and the origin of the stand or state "origin not indigenous";
(5) Purity as a percentage of pure seed by weight;
(6) For those species for which standard germination testing procedures are prescribed by the secretary pursuant to § 38-12A-20, the following:
(a) Percentage germination exclusive of hard and dormant seed;
(b) Percentage of hard and dormant seed, if present;
(c) The calendar month and year the test was completed to determine such percentages.
In lieu of germination information the seed may be labeled "Test is in process, results shall be supplied upon request";
(7) For those species for which standard germination testing procedures have not been prescribed, the calendar year in which the seed was collected;
(8) The name and address of the seedsman or seed producer who labeled the seed.
Source: SL 1988, ch 314, § 6.
38-12A-7. Contents of label for treated seed.
For all named seed which is treated, for which a separate label may be used, the label shall contain:
(1) A word or statement to indicate that the seed has been treated;
(2) The commonly accepted, coined, chemical, or abbreviated generic chemical name of the applied substance;
(3) The caution statement "Do not use for food, feed, or oil purposes" if the treatment or coating is present in an amount that is harmful to human or other vertebrate animals;
(4) In addition, for highly toxic substances, a poison statement or the skull and crossbones symbol shall be shown on the label;
(5) A word or statement describing the purpose for a treatment if the treatment is not of pesticide origin;
(6) The date beyond which the inoculant is no longer considered effective if the seed is treated with an inoculant, listed on the label as "Inoculant expires (month and year)" or wording that conveys the same meaning;
(7) The percentage by weight of coating in each container;
(8) The percentage by weight of pure seed with coating material removed.
The percentage of germination on coated seed shall be labeled on the basis of a determination made on at least four hundred pellets or capsules, whether or not they contain seed.
Source: SL 1988, ch 314, § 7.
38-12A-8. Seed sold in bulk--Display of label on container--Customer copy--Exception.
If seed is offered or exposed for sale in bulk or sold from bulk, the label information requested by §§ 38-12A-2 to 38-12A-7, inclusive, shall be conspicuously displayed on the container or bin. A copy of the label or label information shall be presented to the consumer upon sale except for sale of lawn and turf, vegetable, or flower seed when weighed or measured from bulk in the presence of the consumer.
Source: SL 1988, ch 314, § 8.
38-12A-9. Seed test to determine label information.
Information on a label shall be determined by a seed test conducted by an official state or federal seed laboratory or under the supervision of a registered or certified seed technologist. However, any person may conduct seed tests in his own laboratory to determine label information for his own seed without the supervision of a registered or certified seed technologist.
Source: SL 1988, ch 314, § 9.
38-12A-10. Exceptions to labeling requirements.
The provisions of §§ 38-12A-2 to 38-12A-6, inclusive, do not apply to:
(1) Seed or grain not intended for sowing purposes;
(2) Seed in storage in or being transported or consigned to a conditioning establishment for conditioning, provided that the invoice or labeling accompanying any lot of seed bears the statement "seed for conditioning" and provided that any labeling or other representation which may be made with respect to the unconditioned seed shall be subject to this chapter;
(3) Seed which is in the possession of a seedsman or seed producer and has been conditioned or carried over from a previous sales season or is being transported to another seedsman provided that the seed is not exposed to consumers and that either a test to determine label information is in progress or that the records or a representative label with or accompanying each lot contain current label information;
(4) Any carrier with respect to seed transported or delivered for transportation in the ordinary course of its business as a carrier, provided that the carrier is not engaged in producing, conditioning, or marketing seeds subject to this chapter;
(5) A farmer, when certain large or coarse seeds prescribed by the secretary pursuant to § 38-12A-20 that do retain their identity are grown, sold and delivered by that farmer on his own premises to a seedsman or consumer. Such seeds, if taken to community sales for sale or if publicly advertised for sale or containing "noxious weeds" shall be labeled in accordance with this chapter.
Source: SL 1988, ch 314, § 10.
38-12A-11. Seed dealers permit required--Exception--Expiration--Fee.
No person may sell, distribute, advertise, solicit orders for, offer for sale, expose for sale, or transport seed without first obtaining from the Department of Agriculture and Natural Resources a permit to engage in the business. No permit is required of any person selling or advertising seed of the person's own production in South Dakota, if the seed is stored or delivered to a purchaser only on or from the farm or premises where grown or the production and sale of seed is not a primary endeavor and primary source of income to such persons. Each permit shall expire on the thirty-first day of December of the year following the date of issue. The biennial fee for a seed permit is: Seedsman-- five hundred dollars; Seed producer-- seventy-five dollars; Seed dealer-- seventy-five dollars.
Source: SL 1988, ch 314, § 11; SL 2001, ch 215, § 1; SL 2009, ch 197, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-12A-11.1. Seed fund established--Purpose--Appropriations.
Fees collected pursuant to this chapter shall be deposited with the state treasurer in a special revenue fund known as the seed fund. This fund shall consist of moneys from public and private sources including legislative appropriations, federal grants, gifts, and the fees received pursuant to this chapter. The fund shall be maintained separately and be administered by the department in order to defray the expenses of all activities associated with administering the seed program. Expenditures from the fund shall be appropriated through the normal budget process. Unexpended funds and interest shall remain in the fund until appropriated by the Legislature.
Source: SL 2001, ch 215, § 2.
38-12A-12. Contents of advertisement by person excepted from seed permit.
Any person excepted from a seed permit pursuant to § 38-12A-11 who advertise seed in this state shall comply with this chapter. The advertisement shall include but not be limited to:
(1) Kind, or kind and variety, or kind and "variety not stated";
(2) Percentages of purity and germination;
(3) The percentage by weight of other crop seed, if present;
(4) The rate of occurrence of any restricted noxious weed seed, if present;
(5) The percentage by weight of all weed seed, if present;
(6) The name and telephone number or the name and address of the person commissioning the advertisement.
Source: SL 1988, ch 314, § 12.
38-12A-13. Records of seed lots--File samples--Inspection--Use by secretary.
Each seedsman or seed producer whose name appears on the label as handling seed subject to this chapter shall keep for a period of three years after final disposition complete records of each lot of seed handled and keep for one year after final disposition a file sample of each lot of seed. Each seed dealer who handles seed shall keep, for a period of one year after final disposition, complete records of each lot of seed handled. Seed dealers do not have to keep file samples. All records and samples pertaining to the lots of seed involved shall be accessible for inspection by the secretary or his agent during normal business hours. Information obtained from records and from applications shall be for the sole use of the secretary in carrying out the provisions of this chapter.
Source: SL 1988, ch 314, § 13.
38-12A-14. Secretary provided copy of records and access to premises.
Upon acknowledgment of signature of application for seed permit, each applicant shall agree to provide the secretary with a legible copy of any records, and access during customary business hours to premises where seed is sold, handled, or stored.
Source: SL 1988, ch 314, § 14.
38-12A-15. Modification, revocation, or refusal to renew permit for violations.
After a hearing conducted pursuant to chapter 1-26, the department may modify, revoke, or refuse to renew a permit issued under this chapter if the applicant is in violation of or continues to violate any provision of this chapter.
Source: SL 1988, ch 314, § 15.
38-12A-16. Unlawful sale, offer for sale, or transportation for sale of seed within state--Violation as misdemeanor.
It is unlawful for any person to sell, offer for sale, expose for sale, or transport for sale any seed within this state:
(1) Unless a test to determine the percentage of germination has been made within specified time limits prescribed by the secretary pursuant to § 38-12A-20, or the seed is sold only in the year for which the label states that it was packed, or the seed is sold before the expiration date stated on the label;
(2) Which is not labeled in accordance with the provisions of this chapter;
(3) Which has a false, misleading, or incomplete label;
(4) Which a false or misleading advertisement has been used in respect to its sale;
(5) Which contains prohibited noxious weed seeds in any amount;
(6) Which consists of or contains restricted noxious weed seeds in excess of standards prescribed by the secretary pursuant to § 38-12A-20, or in excess of the number declared on the label attached to the container of the seed or associated with the seed;
(7) Which contains weed seeds in excess of standards prescribed by the secretary pursuant to § 38-12A-20, or in excess of the amount declared on the label;
(8) If any label or advertisement represents such seed to be certified unless the certification has been determined by an official certifying agency and the seed bears an official label issued for the seed by that agency stating that the seed is certified;
(9) If a United States certificate of plant variety protection has been applied for or issued in accordance with the plant variety protection act for the kind and variety being sold, except with the approval of the owner of the variety or except by variety name as a class of certified seed in accordance with Title V of the Federal Seed Act.
A violation of this section is a Class 1 misdemeanor.
Source: SL 1988, ch 314, § 16.
38-12A-17. Additional prohibited acts--Violation as misdemeanor.
It is unlawful for any person:
(1) To alter or deface any label so that the information is false or misleading or to mutilate any label;
(2) To use in any manner any disclaimer, limited warranty or nonwarranty of information provided on a label pursuant to §§ 38-12A-2 to 38-12A-7, inclusive;
(3) To disseminate any false or misleading advertisements concerning seed;
(4) To issue any statement, invoice or declaration as to the variety or certification of any seed which is false or misleading;
(5) To issue any statement or declaration identifying a lot of seed by variety name if the label states "variety not stated";
(6) To hinder or obstruct the secretary or an authorized agent in the performance of official duties under this chapter;
(7) To fail to comply with a "stop sale" order, or to move or otherwise handle or dispose of any quantity of seed held under a "stop sale" order, or a stop sale tag attached thereto, except with express permission of the agent who issued the stop sale in writing and except for the purpose specified therein;
(8) To plant seed which the person knows contains a prohibited noxious weed seed or restricted noxious weed seed in excess of the standards for that seed.
A violation of this section is a Class 1 misdemeanor.
Source: SL 1988, ch 314, § 17.
38-12A-18. Additional civil penalty.
In addition to the criminal penalties imposed under this chapter, a person is subject to a further civil penalty to the State of South Dakota as prescribed by the secretary pursuant to § 38-12A-20 not to exceed ten times the retail value of any seed involved in the violation or a maximum of one thousand dollars per violation.
Source: SL 1988, ch 314, § 18.
38-12A-19. Powers of secretary.
The secretary may:
(1) Enter upon any public or private premises during regular business hours in order to have access to seeds and to the records subject to this chapter;
(2) Inspect, sample, make analysis of, and test seeds to the extent necessary to determine whether the seeds are in compliance with this chapter;
(3) Inspect the records of seeds to the extent necessary to determine whether the seeds are in compliance with this chapter;
(4) Establish and maintain a seed laboratory for seed testing or to cooperate with other persons, agencies or institutions in seed testing and reporting of results;
(5) Employ qualified persons, and to incur such expenses as may be necessary to comply with the provisions of this chapter;
(6) Issue and enforce a written or printed "stop sale" order to the owner or custodian of any lot of seed which is in violation of any of the provisions of this chapter. The order shall prohibit further sale, conditioning, and movement of the seed, except on approval of the agent issuing the stop sale or the secretary, until the secretary has evidence that the law has been complied with and has issued a "Release From Stop Sale" order for the seed;
(7) Request from a court of competent jurisdiction and carry out a seizure on any lot of seed for which a stop sale order has been issued and the person having responsibility has failed to abide by the stop sale order. The court shall order disposition of the seed after any criminal or civil proceedings are terminated;
(8) Cooperate with the United States Department of Agriculture, regulatory agencies of other states, and other agencies of this state in seed law enforcement.
Source: SL 1988, ch 314, § 19.
38-12A-20. Promulgation of rules by secretary.
The secretary may promulgate rules, pursuant to the provisions of chapter 1-26, which are consistent with the following:
(1) To provide application forms for seed permits;
(2) To provide for procedures for contested cases;
(3) To designate which weed seeds are prohibited or restricted;
(4) To establish standards for sampling, inspecting, analyzing, and testing seeds;
(5) To establish the tolerances to be used;
(6) To establish which kinds of seed have to be labeled as to variety, variety not stated, type or performance characteristics;
(7) To establish standards for allowable weed seed or restricted noxious weed seed;
(8) To establish the length of time for which a germination test shall be acceptable;
(9) To establish standards for percentage of germination and inert matter;
(10) To establish which seeds a farmer can produce and sell without a label;
(11) To establish which seeds are subject to specific labeling and germination requirements;
(12) To establish standards for enforcement of plant variety protection;
(13) To provide procedures for releasing seed from stop sales;
(14) To establish standards for imposing civil penalties;
(15) To establish standards for labels;
(16) To establish standards for size of file samples;
(17) To establish procedures and standards for the arbitration committee and the arbitration process;
(18) To establish standards for the sale, transportation, storage, planting, disposal, or other use of seed and for the posting of planted sites and notification of seed use.
Source: SL 1988, ch 314, § 20; SL 2005, ch 211, § 1.
38-12A-21. Right of consumer to submit claim to arbitration.
If any consumer is damaged by the failure of seed to produce or perform as represented by the label attached to the seed, or by warranty, or as a result of negligence, the consumer shall have the right to submit the claim to arbitration as provided in this chapter. The filing of a claim for arbitration is not a prerequisite to the consumer's right to maintain a legal action.
Source: SL 1988, ch 314, § 21.
38-12A-22. Right of seedsman, seed producer, or seed dealer to submit claim to arbitration--Statutes of limitations and legal proceedings tolled.
The seedsman, seed producer, or seed dealer shall also have the right to submit a claim to arbitration if conspicuous language calling attention to the requirement for arbitration is referenced or included on the label or otherwise conspicuously attached or printed on the container. Any applicable statutes of limitation and legal proceedings shall be tolled and stayed pending the outcome of the arbitration proceedings.
Source: SL 1988, ch 314, § 21A.
38-12A-23. Filing of complaint against seedsman, seed producer, or seed dealer--Time limitation--Filing of answer.
The consumer shall make a signed complaint against the seedsman, seed producer, or seed dealer alleging that damages may have been sustained. The consumer shall file the complaint with the secretary and shall send a copy of the complaint to the seedsman, seed producer, or seed dealer by United States registered mail. Except in case of seed which has not been planted the claim shall be filed within such time as to permit effective inspection of the plants under field conditions. Within five working days after receipt of a copy of complaint, the seedsman, seed producer, or seed dealer shall file with the secretary his answer to the complaint and send a copy to the consumer by United States registered mail.
Source: SL 1988, ch 314, § 22.
38-12A-24. Referring of complaint to arbitration committee--Discontinuation of investigation.
The secretary shall refer the complaint and the answer to the arbitration committee for investigation, findings, and recommendation on the matters complained of. Upon receipt of same, the secretary shall transmit the findings and recommendation of the arbitration committee to the consumer and to the seedsman, seed producer, or seed dealer by United States registered mail. The investigation of the committee may be discontinued at any time if the consumer and the seedsman, seed producer, or seed dealer satisfy the complaint and the consumer requests that it be withdrawn.
Source: SL 1988, ch 314, § 23.
38-12A-25. Appointment of committee members--Election of chairman and secretary.
The secretary shall appoint an arbitration committee composed of five members and five alternate members.
One member and one alternate member shall be appointed upon recommendation of each of the following:
(1) Director of extension at South Dakota State University;
(2) Director of the agriculture experiment station at South Dakota State University;
(3) President, South Dakota Seed Trade Association;
(4) President, a farmer organization as the secretary may determine to be appropriate;
(5) Secretary, Department of Agriculture and Natural Resources.
Each member and alternate shall continue to serve until replaced by the secretary. Each alternate member shall serve only in the absence of the member for whom he is an alternate. The committee shall elect a chairman and a secretary from its membership. The chairman shall conduct all meetings and deliberations held by the committee and direct all other activities of the committee. The secretary shall keep accurate and correct records on all meetings and deliberations and perform other duties for the committee as directed by the chairman.
Source: SL 1988, ch 314, § 24; SL 1989, ch 30, § 66A; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-12A-26. Purpose of committee--Nonbinding report--Evidence in litigation.
The purpose of the arbitration committee is to assist consumers and seedsmen, seed producers, and seed dealers in determining the validity of complaints made by consumers and recommend total money damages resulting from alleged failure of seed to produce as represented by label on the seed package. Any report of the arbitration committee is nonbinding. The consumer or the seedman, seed producer, or seed dealer may offer the report as evidence in any litigation.
Source: SL 1988, ch 314, § 25.
38-12A-27. Session called by secretary or upon direction of chairman.
The arbitration committee may be called into session by the secretary or upon the direction of the chairman to consider matters referred to it by the secretary.
Source: SL 1988, ch 314, § 26.
38-12A-28. Investigation by committee--Recommendation--Hearings.
When the secretary refers a complaint to the arbitration committee, the committee shall make a full and complete investigation and report its findings and its recommendation to the secretary and the parties within sixty days of the referral or at a later date as agreed to by the consumer and the seedsman, seed producer or seed dealer. All hearings shall be conducted in the county in which the seed was planted, unless otherwise agreed by the parties.
Source: SL 1988, ch 314, § 27.
38-12A-29. Investigation by majority of committee directed by chairman--Summary.
An investigation may be made by not less than a majority of the membership of the arbitration committee by written directive of the chairman. The investigation shall be summarized in writing and considered by the entire committee in reporting its findings and making its recommendation.
Source: SL 1988, ch 314, § 28.
38-12A-30. Members not compensated--Reimbursement for expenses.
The members of the arbitration committee shall receive no compensation for the performance of their duties, but the members of the committee shall be reimbursed for expenses when they attend a meeting or perform a service in conformity with the requirements of this chapter. The expenses shall be paid by the party demanding arbitration under the provisions of this chapter.
Source: SL 1988, ch 314, § 29.
38-12A-31. Federal permits for introduction of organisms and products produced through genetic engineering authorized for use in state.
Any holder of a permit issued pursuant to 7 CFR 340, as amended to January 1, 2004, is authorized to use the permit in South Dakota.
Source: SL 2004, ch 257, § 1.
38-14-1 to 38-14-8. Repealed.
CHAPTER 38-15
POTATO GRADES AND STANDARDS [REPEALED]
38-15-1 38-15-1. Repealed by SL 2017, ch 180, § 1.
38-15-2 38-15-2. Repealed by SL 2013, ch 191, § 4.
38-15-2.1 38-15-2.1 to 38-15-4. Repealed by SL 1977, ch 307, § 12
38-15-5 38-15-5. Repealed by SL 2017, ch 180, § 2.
38-15-6 38-15-6 to 38-15-8. Repealed by SL 1977, ch 307, § 12
38-15-9 38-15-9, 38-15-10. Repealed by SL 2013, ch 191, §§ 5, 6.
38-15-11 38-15-11. Repealed by SL 1977, ch 307, § 12
38-15-12 38-15-12. Repealed by SL 2013, ch 191, § 7.
38-15-13 38-15-13 to 38-15-17. Repealed by SL 1977, ch 307, § 12
38-15-18 38-15-18. Repealed by SL 2013, ch 191, § 8.
38-15-19 38-15-19, 38-15-20. Repealed by SL 1977, ch 307, § 12
38-15-21 38-15-21. Repealed by SL 2013, ch 191, § 9.
38-15-22 38-15-22, 38-15-23. Repealed by SL 1977, ch 307, § 12
38-15-24 38-15-24, 38-15-25. Repealed by SL 2013, ch 191, §§ 10, 11.
38-15-26 38-15-26 to 38-15-30. Repealed by SL 1977, ch 307, § 12
38-15-31 38-15-31. Repealed by SL 2013, ch 191, § 12.
38-15-32 38-15-32, 38-15-33. Repealed by SL 1977, ch 307, § 12
38-17-1
Contract reserving title to landlord to be filed with register of deeds
.
38-17-1.1
Crop seeds defined.
38-17-2
Reserved title to grain, seed, or crop not enforceable against innocent third party
unless filed.
38-17-3
Lien on crop for seed furnished--Limitation on amount contained in farm lease.
38-17-4
Seed lien available to foreign corporations without qualifying.
38-17-5
Filing of seed lien affidavit with register of deeds.
38-17-6
Seed lien affidavit on behalf of nonresident.
38-17-7
Entry of seed lien statements by register of deeds--Notice to purchasers and
encumbrancers.
38-17-8
Priority of seed liens.
38-17-9
Unauthorized use of seed subject to lien as misdemeanor.
38-17-10
Lien of federal agency furnishing seed or money.
38-17-11
Filing of federal seed lien with register of deeds--Contents of notice.
38-17-12
Misappropriation of federally furnished seed or money as misdemeanor.
38-17-13
General law of seed liens applicable to federal liens.
38-17-14
Farm machinery owner's lien on processed agricultural products.
38-17-15
Account filed by processor with register of deeds--Contents--Notice to purchasers
and encumbrancers.
38-17-16
Priority of threshers' and processors' liens.
38-17-17
Innocent purchaser of crop protected against unfiled lien.
38-17-18
Unauthorized disposition of property subject to thresher's or processor's lien as
misdemeanor.
38-17-19
Foreclosure of crop liens.
38-17-1. Contract reserving title to landlord to be filed with register of deeds.
Every contract whereby the ownership or title to crops growing or to be grown upon any lands in this state is reserved in the landlord until division thereof between such landlord and the cropper or tenant, shall be filed in the office of the register of deeds of the county wherein such lands are located.
Source: SL 1931, ch 132; SDC 1939, § 39.0125; SL 1967, ch 152.
38-17-1.1. Crop seeds defined.
For the purposes of this chapter, the term, crop seeds, means the seeds of grass, forage, cereal, oil, fiber, and other kinds of crop seed commonly recognized within this state as agricultural seed and combinations of such seeds.
Source: SL 2018, ch 241, § 1.
38-17-2. Reserved title to grain, seed, or crop not enforceable against innocent third party unless filed.
In the absence of filing pursuant to § 38-17-1, the provision of any contract reserving title to the grain, seed, or crop produced from a crop growing or to be grown on any lands in this state do not apply to and may not be enforced against an innocent purchaser of the grain, seeds, or crop or against any innocent encumbrancer perfecting a security interest in the grain, seeds, or crop under the provisions of title 57A.
Source: SL 1931, ch 132; SDC 1939, § 39.0125; SL 1967, ch 152; SL 2018, ch 241, § 2.
38-17-3. Lien on crop for seed furnished--Limitation on amount contained in farm lease.
Any person who provides crop seeds to be planted on any lands owned, used, or rented by another person has a lien on the crop produced from the seed if the person providing the seed files the notice described in § 38-17-5. A landlord and tenant may limit the amount of seed to be furnished to a tenant by a provision in a lease if the lease is filed in the office of the register of deeds before the seed is furnished to the tenant.
Source: SL 1887, ch 150, § 1; CL 1887, § 5490; RCCivP 1903, § 731; RC 1919, § 1677; SL 1937, ch 15; SDC 1939, § 39.1201; SL 1985, ch 310, § 1; SL 2018, ch 241, § 3.
38-17-4. Seed lien available to foreign corporations without qualifying.
Any corporation created by virtue of the laws of any other state or territory may furnish crop seed under the provisions of §§ 38-17-3 to 38-17-9, inclusive, without complying with the laws in reference to foreign corporations doing business in this state.
Source: SL 1887, ch 150, § 3; CL 1887, § 5492; SL 1890, ch 60; RCCivP 1903, § 733; RC 1919, § 1679; SDC 1939, § 39.1202; SL 2018, ch 241, § 4.
38-17-5. Filing of seed lien affidavit with register of deeds.
Any person entitled to a lien pursuant to § 38-17-3 shall provide a written account stating the kind, quantity, and value of the seed, the name of the person who furnished the seed, and a description of the land on which the seed has been or is to be planted or sown, and after making oath to the correctness of the account, shall file the same in the office of the register of deeds of the county in which the crop is to be planted.
Source: SL 1887, ch 150, § 3; CL 1887, § 5492; RCCivP 1903, § 733; RC 1919, § 1679; SDC 1939, § 39.1202; SL 2018, ch 241, § 5.
38-17-6. Seed lien affidavit on behalf of nonresident.
If the person furnishing any crop seed pursuant to §§ 38-17-3 to 38-17-9, inclusive, is not a resident of this state, the affidavit required by § 38-17-5 may be made by the person's attorney or agent who is a resident of this state. The affidavit shall indicate the nonresidence of the person, and also the fact of the residence of the attorney or agent.
Source: SL 1887, ch 150, § 3; CL 1887, § 5492; SL 1890, ch 60; RCCivP 1903, § 733; RC 1919, § 1679; SDC 1939, § 39.1202; SL 2018, ch 241, § 6.
38-17-7. Entry of seed lien statements by register of deeds--Notice to purchasers and encumbrancers.
The office of the register of deeds shall file and enter the statements required by § 38-17-5 in the manner required by law in the personal property index. The filing of the statements described in §§ 38-17-5 and 38-17-6 operates as a notice of the lien to all subsequent purchasers and encumbrancers of the property.
Source: SL 1887, ch 150, § 4; CL 1887, § 5493; RCCivP 1903, § 734; RC 1919, § 1680; SDC 1939, § 39.1202; SL 2018, ch 241, § 7.
38-17-8. Priority of seed liens.
Any lien under the provisions of §§ 38-17-3 to 38-17-7, inclusive, if filed within thirty days after the crop seed is furnished, has preference in the order of the filing. The lien has priority over all other liens and encumbrances on the crop, except threshers' liens.
Source: SL 1887, ch 150, § 2; CL 1887, § 5491; RCCivP 1903, § 732; RC 1919, § 1678; SDC 1939, § 39.1203; SL 2018, ch 241, § 8.
38-17-9. Unauthorized use of seed subject to lien as misdemeanor.
Any person who obtains crop seeds subject to a lien under the provisions of §§ 38-17-3 to 38-17-8, inclusive, and who uses the seed or any part of the seed without the written consent of the person who furnished the seed for any other purpose, is guilty of a Class 2 misdemeanor.
Source: SL 1887, ch 150, § 6; CL 1887, § 5495; RCCivP 1903, § 736; RC 1919, § 1682; SDC 1939, § 39.9902; SL 1977, ch 190, § 316; SL 1985, ch 310, § 2; SL 2018, ch 241, § 9.
38-17-10. Lien of federal agency furnishing seed or money.
The United States of America or any agency or instrumentality thereof, including production credit associations organized under the Farm Credit Act of 1933, furnishing seed or loaning money for the purchase of seed, to any person within the State of South Dakota for the purpose of sowing or planting crops upon lands owned, used, occupied, rented, or contracted to be purchased by such person, shall have a lien from the time of filing the notice in the manner specified in § 38-17-11 upon the seed so furnished or purchased, and upon the crop or crops produced from such seed, to secure payment for the seed so furnished or repayment of the money so loaned.
Source: SL 1935, ch 143, § 1; SDC 1939, § 39.1204.
38-17-11. Filing of federal seed lien with register of deeds--Contents of notice.
The lien of the United States or its agency is perfected by filing, in like manner as similar lien notices or accounts are filed under § 38-17-5, in the office of the register of deeds of the county in which the seed is to be planted, a notice in writing, verified by the oath of the officer, agent, or representative of the government or agency thereof furnishing the seed or making the loan. The notice shall include: the kind, quantity, and value of the seed furnished or the amount of money loaned; the name of the person to whom the seed was furnished or the money loaned; and a description of the land which the seed has been or is to be sown or planted.
Source: SL 1935, ch 143, § 2; SDC 1939, § 39.1205; SL 2018, ch 241, § 10.
38-17-12. Misappropriation of federally furnished seed or money as misdemeanor.
Any person who misappropriates any of the seed, or money loaned to purchase the seed, furnished by the United States or any agency, or any crop grown from the seed, and for which the United States or agency has a lien under the provisions of § 38-17-10, to any purpose except that for which it was furnished or produced, is guilty of a Class 1 misdemeanor.
Source: SL 1935, ch 143, § 3; SDC 1939, § 39.9903; SL 1977, ch 190, § 317; SL 2018, ch 241, § 11.
38-17-13. General law of seed liens applicable to federal liens.
All other statutes of South Dakota applicable to crop seed liens, including the duties of register of deeds, priorities, foreclosure, and penal provisions, except if a different intention plainly appears, are applicable to federal agency seed liens as provided in §§ 38-17-10 and 38-17-11.
Source: SL 1935, ch 143, § 3; SDC 1939, § 39.1206; SL 2018, ch 241, § 12.
38-17-14. Farm machinery owner's lien on processed agricultural products.
Any person owning and operating farm machinery has a lien from the date of operation on all grain threshed or combined, corn shelled, husked or shredded, silage cut, seeds hulled, or agricultural products baled, mowed, ground, raked, or pulverized by the person with the machine for the value of the services so rendered in operation.
Source: SL 1889, ch 88, § 1; SL 1901, ch 174, § 1; RCCivP 1903, § 737; RC 1919, § 1683; SL 1921, ch 281, § 1; SL 1931, ch 175, § 1; SDC 1939, § 39.1301; SL 1957, ch 199; SL 2018, ch 241, § 13.
38-17-15. Account filed by processor with register of deeds--Contents--Notice to purchasers and encumbrancers.
Any person entitled to a lien under § 38-17-14 shall provide a written account stating the kind of grain, and the quantity harvested, threshed, shelled, or otherwise processed, the price agreed upon for such work, which may not exceed the price usually charged for the service, the name of the person for whom the work was done, and a description of the land on which the crop was grown. After making oath to the correctness of the account, the person shall file the account in the office of the register of deeds in the county in which the land producing the crop is located, and also in the county of the residence of the person who produced the crop, if the person is a resident of this state. The office of the register of deeds shall file and enter the account in the manner required by law in the personal property index. The filing serves as notice to all purchasers and encumbrancers subsequent to the date of the filing.
Source: SL 1889, ch 88, §§ 3, 4; RCCivP 1903, §§ 739, 740; RC 1919, §§ 1685, 1686; SL 1921, ch 281, § 3; SL 1931, ch 175, § 3; SL 1933, ch 130; SDC 1939, § 39.1302; SL 2018, ch 241, § 14.
38-17-16. Priority of threshers' and processors' liens.
Any lien under § 38-17-14 has priority over all other liens and encumbrances upon the grain, if filed within thirty days from the day on which the harvesting, threshing, shelling, or other processing was completed.
Source: SL 1901, ch 174, § 2; RCCivP 1903, § 738; RC 1919, § 1684; SL 1921, ch 281, § 2; SL 1931, ch 175, § 2; SDC 1939, § 39.1303; SL 1995, ch 231.
38-17-17. Innocent purchaser of crop protected against unfiled lien.
The provisions of § 38-17-14 shall not apply to an innocent purchaser of the grain, corn seeds, or agricultural products baled, mowed, ground, raked, or pulverized after the threshing, combining, shelling, husking, shredding, cutting, hulling, baling, mowing, grinding, raking, or pulverizing, unless the said lien be filed within ten days after completion of the service.
Source: SL 1889, ch 88, § 1; SL 1901, ch 174, § 1; RCCivP 1903, § 737; RC 1919, § 1683; SL 1921, ch 281, § 1; SL 1931, ch 175, § 1; SDC 1939, § 39.1301; SL 1957, ch 199.
38-17-18. Unauthorized disposition of property subject to thresher's or processor's lien as misdemeanor.
Any person selling, secreting, or disposing of property covered by a threshing, harvesting, hulling, or other processing lien under the provisions of §§ 38-17-14 to 38-17-17, inclusive, without the written consent of the owner of said lien, is guilty of a Class 2 misdemeanor.
Source: SL 1889, ch 88, § 6; RCCivP 1903, § 742; RC 1919, § 1688; SDC 1939, § 39.9904; SL 1977, ch 190, § 318.
38-17-19. Foreclosure of crop liens.
Any person having a lien under the provisions of §§ 38-17-3 to 38-17-18, inclusive, may foreclose the same under the provisions of chapter 21-53 or under the provisions of chapter 21-54, subject to the right of any person adversely interested to require foreclosure under the provisions of chapter 21-53.
Source: SL 1887, ch 150, § 5; CL 1887, § 5494; SL 1889, ch 88, § 5; RCCivP 1903, §§ 735, 741; RC 1919, §§ 1681, 1687; SDC 1939, §§ 39.1207, 39.1305.
CHAPTER 38-18
APIARIES
38-18-1 Definition of terms.
38-18-2 38-18-2. Repealed by SL 1983, ch 280, § 1.
38-18-3 Annual application for registration of apiaries--Contents--Revocation of landowner or lessee's placement authorization--Approval or rejection of registration--Hearings--Violation as misdemeanor--Civil penalty.
38-18-3.1 Minimum distance between apiaries--Beekeepers excepted on own property.
38-18-3.2 38-18-3.2. Repealed by SL 1986, ch 330, § 4.
38-18-3.3 Identification of apiary--Violation as misdemeanor.
38-18-3.4 Abandoned apiary--Destruction, treatment or seizure of bees and equipment.
38-18-4 Application for entrance permit--Action by secretary--Failure to apply for permit as misdemeanor--Civil penalty.
38-18-5 Registration of apiary--Fees.
38-18-5.1 Apiary fund established--Purpose--Appropriations.
38-18-6 38-18-6. Repealed by SL 1976, ch 243, § 20.
38-18-7 38-18-7. Repealed by SL 1986, ch 330, § 9.
38-18-8 Movable frames required in hives--Violation as misdemeanor.
38-18-9 Sealing of diseased hives required--Violation as misdemeanor--Additional penalty.
38-18-10 Infested colony or apiary as public nuisance--Treatment or destruction of infested apiaries--Violation as misdemeanor--Additional penalty.
38-18-11 Exposure of infected bees or equipment as misdemeanor--Additional penalty.
38-18-12 Inspection programs--Employment of personnel--Investigation and control of diseases--Movement of bees in and out of state.
38-18-13 False information or hindering of enforcement as misdemeanor.
38-18-14 Access of departmental personnel to premises and apiaries.
38-18-15 Certificate of inspection--Issuance and contents--Certificate of health--Duration--Revocation.
38-18-16 Written order by secretary to treat or destroy apiary, regulated pests or exotic bees--Action by secretary if order not obeyed--Secretary authorized to sell salvageable equipment and bees.
38-18-16.1 Hearing--Staying of effective date of order--Exception--Affirmation, amendment or revocation of order.
38-18-16.2 Failure to comply with order--Strict liability for costs of destruction.
38-18-17 38-18-17. Repealed by SL 1986, ch 330, § 20.
38-18-18 38-18-18. Repealed by SL 1986, ch 330, § 22.
38-18-19 Quarantine of bees, equipment, and premises--Unauthorized removal or handling as misdemeanor--Continuation until determination by secretary.
38-18-20 Written order to place honey house in sanitary condition--Failure to obey as misdemeanor.
38-18-21 Certificate of health or compliance agreement required for bees and used bee equipment imported from another state--Importation without certificate or compliance agreement as misdemeanor.
38-18-22 38-18-22. Repealed by SL 1986, ch 330, § 26.
38-18-23 Certificate of health--Content--Based on actual inspection.
38-18-24 38-18-24. Repealed by SL 1986, ch 330, § 28.
38-18-25 Unlawfully imported bees subject to seizure--Destruction or treatment if found to be infested--Notice of intent to seize--Owner to comply with provisions of this chapter or remove bees from state--Assessments of costs.
38-18-26 Certificate of inspection required to transfer ownership of bees or used bee equipment--Copy to recipient of bees--Violation as misdemeanor.
38-18-27 Request to enter compliance agreement or for additional inspections by departmental personnel--Fees and expenses.
38-18-28 Promulgation of rules by secretary.
38-18-28.1 Restriction on movement of bees and related articles from quarantined area--Promulgation of rules.
38-18-29 38-18-29. Repealed by SL 1986, ch 330, § 33.
38-18-30 38-18-30. Repealed by SL 1976, ch 243, § 20.
38-18-31 Promotion of honey and by-products.
38-18-32 Definitions.
38-18-33 Honey industry fund.
38-18-34 Administration of honey industry fund--Donation--Expenditures.
38-18-35 Promulgation of rules for honey industry fund.
38-18-36 Annual honey assessment.
38-18-37 Dissemination of information and instruction concerning honey assessment.
38-18-1. Definition of terms.
Terms used in this chapter mean:
(1) "Apiary," any place where one or more colonies of bees are kept;
(2) "Appliances," any apparatus, tools, machines, or other devices, used in the handling and manipulating of bees, honey, wax, and hives. The term includes containers of honey and wax which may be used in an apiary or in transporting bees and their products and apiary supplies;
(3) "Bees," any stage of the common honeybee, Apis mellifera L;
(4) "Bee equipment," hives, supers, frames, or any parts thereof;
(5) "Colony," the bees in any hive including queens, workers, and drones;
(6) "Hive," any frame hive, box hive, box, barrel, log gum, skep, or any other container, which may be used as a domicile for bees;
(7) "Honey house," any building, or rooms within a building, where honey is handled, extracted, bottled, stored, or processed;
(8) "Location," any quarter-section or smaller portion of land where apiaries may be kept;
(9) "Nucleus," any division or portion of a hive that contains comb;
(10) "Package," an indefinite number of bees, in a bee-tight container, with or without a queen, without comb;
(11) "Permanent permit," a bee location permit issued by the secretary effective for an indefinite period of time;
(12) "Pest," any animal, plant, insect, or infectious, transmissible, or contagious disease or other organism which is or may be dangerous to the apiary industry of the state;
(13) "Pollination," the use of bees for the transfer of pollen in the production of agricultural crops;
(14) "Regulated pest," American foulbrood (Bacilius larvae), honeybee tracheal mite (Acarapis woodi), varroa mite (Varros jacobsoni), Africanized honeybee (apis mellifera scutellata), or any other pest which the secretary considers dangerous to the apiary industry and which warrants control or eradication;
(15) "Temporary permit," a bee location permit issued by the secretary effective for a limited period of time;
(16) "Secretary," the secretary of the Department of Agriculture and Natural Resources of the State of South Dakota.
Source: SL 1947, ch 6, § 1; SL 1959, ch 2, § 1; SDC Supp 1960, § 4.1101; SL 1961, ch 3; SL 1976, ch 243, § 1; SL 1986, ch 330, § 1; SL 1992, ch 280, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-18-3. Annual application for registration of apiaries--Contents--Revocation of landowner or lessee's placement authorization--Approval or rejection of registration--Hearings--Violation as misdemeanor--Civil penalty.
Any person owning, leasing, or possessing bees shall file an application registering the bees and each apiary with the secretary. The application shall be filed before the first day of February each year or within ten days of acquiring ownership or possession of any bees or apiary or before moving bees into the state and shall contain each location by legal description, the name of the landowner or lessee of the location, the number of colonies of bees in each apiary, and any other information required by the secretary. The landowner or lessee authorizing the placement of an apiary on a location may revoke the authorization by notifying the owner of the apiary and the secretary in writing. Such revocation of authorization by a landowner or lessee is not sufficient justification for a contested case hearing. If any person fails to register an apiary within the time specified by this section, the landowner authorization for that location is invalid.
A registration application shall be approved or rejected by the secretary in compliance with this chapter or rules promulgated pursuant to chapter 1-26. The secretary may deny applications, revoke permits, or conduct contested case hearings in accordance with rules promulgated pursuant to chapter 1-26. Any person failing to register an apiary or bees pursuant to this section is guilty of a Class 2 misdemeanor. In addition to the criminal penalty imposed by this section, a person is subject to a civil penalty not to exceed five hundred dollars for each location that the person has failed to register.
Source: SL 1945, ch 10, § 2; SL 1947, ch 6, § 4; SL 1953, ch 6; SL 1959, ch 2, § 4; SDC Supp 1960, § 4.1104; SL 1961, ch 4; SL 1963, ch 4; SL 1965, ch 5; SL 1976, ch 243, § 3; SL 1983, ch 280, § 2; SL 1986, ch 326, § 22; SL 1986, ch 330, § 2; SL 1989, ch 344, § 1; SL 1992, ch 280, § 2; SL 2001, ch 215, § 3.
38-18-3.1. Minimum distance between apiaries--Beekeepers excepted on own property.
Unless permitted by the secretary, no apiary may be located within three miles of any other apiary. However, any beekeeper who owns property may locate an apiary anywhere on that property.
Source: SL 1976, ch 243 § 19; SL 1986, ch 326, § 23; SL 1986, ch 330, § 3.
38-18-3.3. Identification of apiary--Violation as misdemeanor.
Any person owning an apiary shall place a prominent sign within the apiary, with the name, address, and telephone number of the person in charge of maintaining the apiary. Any person who fails to identify an apiary as provided in this section is guilty of a Class 2 misdemeanor.
Source: SL 1986, ch 330, § 5.
38-18-3.4. Abandoned apiary--Destruction, treatment or seizure of bees and equipment.
The failure to file an application registering an apiary pursuant to § 38-18-3, or the failure to identify a location pursuant to § 38-18-3.3, constitutes abandonment of the apiary. If the abandoned bees and bee equipment are found to be infested with a regulated pest, the secretary shall immediately treat or destroy the apiary. If the apiary is not infested with a regulated pest, the secretary may, upon finding in a contested case proceeding conducted pursuant to chapter 1-26 that there is no justifiable excuse for failure to comply with § 38-18-3 or 38-18-3.3, claim and seize the abandoned bees and bee equipment for use or sale.
Source: SL 1986, ch 330, § 6; SL 1989, ch 344, § 2.
38-18-4. Application for entrance permit--Action by secretary--Failure to apply for permit as misdemeanor--Civil penalty.
Thirty days before transporting bees or used bee equipment not included in a compliance agreement into the state, a person shall file with the secretary an application for an entrance permit. A certificate of health, pursuant to § 38-18-23, shall be filed with the secretary prior to approval of the entrance permit. The secretary shall act upon an application within thirty days and may revoke entrance permits and conduct contested case hearings in accordance with this chapter or rules promulgated pursuant to chapter 1-26. The failure to apply for an entrance permit is a Class 2 misdemeanor. Any person failing to apply for an entrance permit is also subject to a civil penalty not to exceed five hundred dollars for each day he remains in violation of this section.
Source: SL 1945, ch 10, § 2; SL 1947, ch 6, § 4; SL 1953, ch 6; SL 1959, ch 2, § 4; SDC Supp 1960, § 4.1104; SL 1961, ch 4; SL 1963, ch 4; SL 1965, ch 5; SL 1976, ch 243, § 4; SL 1983, ch 27, § 4; SL 1986, ch 330, § 7; SL 1989, ch 344, § 3; SL 1992, ch 280, § 3.
38-18-5. Registration of apiary--Fees.
Any person registering an apiary pursuant to § 38-18-3 shall pay a registration fee of sixteen dollars per permanent location and forty dollars per temporary location.
Source: SDC Supp 1960, § 4.1104 as enacted by SL 1963, ch 4; SL 1965, ch 5; SL 1975, ch 249; SL 1976, ch 243, § 5; SL 1983, ch 27, § 5; SL 1986, ch 330, § 8; SL 2001, ch 215, § 4; SL 2023, ch 144, § 1.
38-18-5.1. Apiary fund established--Purpose--Appropriations.
Except as provided by § 38-18-36, fees collected pursuant to this chapter shall be deposited with the state treasurer in a special revenue fund known as the apiary fund. This fund shall consist of moneys from public and private sources including legislative appropriations, federal grants, gifts, and the fees received pursuant to this chapter. The fund shall be maintained separately and be administered by the department in order to defray the expenses of all activities associated with administering the apiary program. Expenditures from the fund shall be appropriated through the normal budget process. Unexpended funds and interest shall remain in the fund until appropriated by the Legislature.
Source: SL 2001, ch 215, § 6.
38-18-8. Movable frames required in hives--Violation as misdemeanor.
Any person engaged in beekeeping shall provide movable frames in all hives in their apiary, and cause the bees to construct brood combs in the frames so that any of the frames may be removed from the hive without causing injury to other combs in the hive. Any violation of this section is a Class 2 misdemeanor.
Source: SL 1927, ch 62, § 1; SL 1931, ch 93; SDC 1939, § 4.1102; SL 1947, ch 6, § 8; SDC Supp 1960, § 4.1108; SL 1986, ch 330, § 10.
38-18-9. Sealing of diseased hives required--Violation as misdemeanor--Additional penalty.
Any hive which is infested with pests and in which the bees have died, shall be made tight so that robber bees cannot enter or leave the hive. The sealing of the hive shall be maintained as long as the hive remains infested with pests or remains in the apiary or in any place where robber bees can gain access to it. Any violation of this section is a Class 1 misdemeanor. In addition to the criminal penalty imposed by this section, a person is subject to a further penalty not in excess of five hundred dollars for each day he remains in violation of this section.
Source: SL 1947, ch 6, § 8; SDC Supp 1960, § 4.1108; SL 1976, ch 243, § 6; SL 1986, ch 330, § 11.
38-18-10. Infested colony or apiary as public nuisance--Treatment or destruction of infested apiaries--Violation as misdemeanor--Additional penalty.
Any colony or apiary infested with a regulated pest is a public nuisance. The owner or person in charge of maintaining an apiary shall, upon finding that a regulated pest is present in the apiary, immediately treat the regulated pest or destroy or remove the infested apiary or upon receiving written notice pursuant to § 38-18-16 comply with such notice. Any violation of this section is a Class 1 misdemeanor. In addition to the criminal penalty imposed by this section, a person is subject to a further penalty not to exceed five hundred dollars per day, for each day he remains in violation of this section.
Source: SL 1947, ch 6, § 9; SL 1959, ch 2, § 6; SDC Supp 1960, § 4.1109; SL 1976, ch 243, § 7; SL 1986, ch 330, § 12.
38-18-11. Exposure of infected bees or equipment as misdemeanor--Additional penalty.
No person may expose any bees, bee equipment, or appliances infected with pests in a manner or in a place where the pest could be transmitted or disseminated to other bees or bee equipment. Any violation of this section is a Class 1 misdemeanor. In addition to the criminal penalty imposed by this section, a person is subject to a further penalty not to exceed five hundred dollars per day for each day he remains in violation of this section.
Source: SL 1947, ch 6, § 9; SL 1959, ch 2, § 6; SDC Supp 1960, § 4.1109; SL 1986, ch 330, § 13.
38-18-12. Inspection programs--Employment of personnel--Investigation and control of diseases--Movement of bees in and out of state.
The secretary shall establish an apiary and a honey house inspection program. The secretary shall employ personnel to investigate outbreaks of pests and take suitable measures for their eradication or control. The secretary may enter into compliance agreements or memorandums of understanding with beekeepers or with other states or agencies to aid the control of regulated pests and to facilitate the movement of bees and used bee equipment out of and back into this state.
Source: SL 1925, ch 115, ch III, art V, § 17; SDC 1939, § 4.1101; SL 1939, ch 4; SL 1943, ch 4; SL 1945, ch 9; SL 1945, ch 10, § 1; SL 1947, ch 6, § 2; SL 1959, ch 2, § 2; SDC Supp 1960, § 4.1102; SL 1976, ch 243, § 8; SL 1986, ch 326, § 24; SL 1986, ch 330, § 14; SL 1992, ch 280, § 4.
38-18-13. False information or hindering of enforcement as misdemeanor.
It is a Class 1 misdemeanor for any person to knowingly give false or incomplete information in any application or permit required by this chapter or to resist, impede, or hinder the secretary in the discharge of his duties pursuant to this chapter.
Source: SL 1947, ch 6, § 6; SL 1959, ch 2, § 5; SDC Supp 1960, § 4.1106; SL 1977, ch 190, § 320; SL 1986, ch 330, § 15.
38-18-14. Access of departmental personnel to premises and apiaries.
The secretary may enter any private or public premises on which an apiary or any bee equipment is located to ascertain the existence of pests or regulated pests.
Source: SL 1947, ch 6, § 3; SL 1959, ch 2, § 3; SDC Supp 1960, § 4.1103; SL 1976, ch 243, § 9; SL 1986, ch 330, § 16; SL 1992, ch 280, § 5.
38-18-15. Certificate of inspection--Issuance and contents--Certificate of health--Duration--Revocation.
If an apiary is inspected, a certificate of inspection shall be issued. The certificate of inspection shall indicate the findings of the inspector. If the apiary is found to be apparently free of regulated pests and to be in compliance with the provisions of this chapter, a certificate of health may be issued. A certificate of health may be revoked by the secretary for cause pursuant to chapter 1-26.
Source: SL 1927, ch 62, § 1; SL 1931, ch 93; SDC 1939, § 4.1102; SL 1947, ch 6, § 3; SL 1959, ch 2, § 3; SDC Supp 1960, § 4.1103; SL 1976, ch 243, § 10; SL 1984, ch 265, § 1; SL 1986, ch 330, § 17; SL 1992, ch 280, § 6.
38-18-16. Written order by secretary to treat or destroy apiary, regulated pests or exotic bees--Action by secretary if order not obeyed--Secretary authorized to sell salvageable equipment and bees.
If any regulated pest is found to exist in an apiary, the secretary shall issue a written order to the person owning or in charge of the bees that the apiary or regulated pest shall be treated, destroyed or removed in a manner and time specified by the secretary. If the specified actions in the order are not performed, the secretary may destroy the apiary or regulated pest and may claim and utilize or sell all salvageable equipment and bees to recover the costs accrued to the department as a result of the destruction activities.
Source: SL 1909, ch 221, § 2; RC 1919, § 8051; SL 1927, ch 62, § 1; SL 1931, ch 93; SDC 1939, § 4.1102; SL 1947, ch 6, § 3; SL 1959, ch 2, § 3; SDC Supp 1960, § 4.1103; SL 1976, ch 243, § 11; SL 1986, ch 330, § 18; SL 1992, ch 280, § 7.
38-18-16.1. Hearing--Staying of effective date of order--Exception--Affirmation, amendment or revocation of order.
Any owner of an apiary who has been ordered to treat, destroy, or remove an apiary or regulated pest pursuant to § 38-18-16, may request a hearing pursuant to chapter 1-26 before the date specified in the order. The request shall stay the effective date of the order unless the secretary finds that to delay effectiveness of the order would constitute an eminent hazard to life or property, including other bees. The secretary may affirm, amend, or revoke the order at the hearing.
Source: SL 1986, ch 330, § 19; SL 1989, ch 344, § 4; SL 1992, ch 280, § 8.
38-18-16.2. Failure to comply with order--Strict liability for costs of destruction.
Any person who fails to comply with a written notice pursuant to § 38-18-16 is strictly liable to the department for all costs accrued to the secretary for the destruction of the exotic bees, regulated pest, or apiary.
Source: SL 1986, ch 330, § 21.
38-18-19. Quarantine of bees, equipment, and premises--Unauthorized removal or handling as misdemeanor--Continuation until determination by secretary.
The secretary may place any apiaries, bees, bee equipment, bee products, honey houses, or appliances where regulated pests are found to exist under quarantine. The removal or handling of any quarantined bees, apiaries, bee equipment, honey houses, or appliances without the written permission of the secretary, is a Class 1 misdemeanor. A quarantine shall exist until the secretary determines the bee, apiary, bee equipment, honey house, or appliance is apparently free from the regulated pest. The secretary may quarantine additional premises he considers necessary.
Source: SL 1927, ch 62, § 2; SDC 1939, § 4.1103; SL 1947, ch 6, § 5; SDC Supp 1960, § 4.1105; SL 1976, ch 243, § 12; SL 1983, ch 280, § 3; SL 1986, ch 330, § 23.
38-18-20. Written order to place honey house in sanitary condition--Failure to obey as misdemeanor.
If the secretary determines, pursuant to rules promulgated pursuant to the provisions of chapter 1-26, that unsanitary conditions exist in the operation of any honey house, the secretary shall order the operator of the honey house in writing to place the honey house in a sanitary condition within a reasonable period of time. Any operator of a honey house who fails to obey the order, is guilty of a Class 2 misdemeanor.
Source: SL 1947, ch 6, § 15; SDC Supp 1960, § 4.1114; SL 1976, ch 243, § 13; SL 1977, ch 190, § 321; SL 1986, ch 326, § 25; SL 1986, ch 330, § 24.
38-18-21. Certificate of health or compliance agreement required for bees and used bee equipment imported from another state--Importation without certificate or compliance agreement as misdemeanor.
All bees and used bee equipment brought into this state from other states shall be accompanied by a certificate of health issued by that state or a compliance agreement with this state. The certificate of health shall comply with § 38-18-23. The transportation of bees into this state without a certificate of health or a compliance agreement by any person or common carrier is a Class 1 misdemeanor.
Source: SL 1947, ch 6, § 10; SDC Supp 1960, § 4.1110; SL 1986, ch 330, § 25; SL 1992, ch 280, § 9.
38-18-23. Certificate of health--Content--Based on actual inspection.
The certificate of health shall certify to the apparent freedom from regulated pests, and shall be based on actual inspection of bees and material within ninety days of the date of shipment.
Source: SL 1947, ch 6, § 11; SL 1959, ch 2, § 7; SDC Supp 1960, § 4.1111; SL 1976, ch 243, § 15; SL 1986, ch 330, § 27.
38-18-25. Unlawfully imported bees subject to seizure--Destruction or treatment if found to be infested--Notice of intent to seize--Owner to comply with provisions of this chapter or remove bees from state--Assessments of costs.
Any bees brought into this state without an entrance permit or a compliance agreement shall be seized by the secretary. If the bees are found by the secretary to be infested by a regulated pest, the secretary may forthwith destroy the bees and bee equipment or may order treatment of the bees. Following seizure, the secretary shall serve notice upon the owner, if known, by certified mail, return receipt requested, and if the owner is unknown, publish in the county where the apiary is located, a notice of seizure. The notice shall describe the apiary, the original location of the apiary, and the date and time of a hearing, to be conducted pursuant to chapter 1-26, at which any person may make claim to the apiary. If the apiary is not claimed, it is considered abandoned and the secretary may utilize or sell the bees and equipment. If the apiary is shown to be owned by a particular person, the secretary shall order the owner to comply with the provisions of this chapter or to remove the bees from the state within ten days. In addition the secretary shall, before releasing the apiary to the owner, assess against the owner of the bees the costs of seizure, treatment or destruction of the bees.
Source: SL 1947, ch 6, § 18; SDC Supp 1960, § 4.9908; SL 1983, ch 280, § 4; SL 1986, ch 330, § 29; SL 1989, ch 344, § 5; SL 1992, ch 280, § 10.
38-18-26. Certificate of inspection required to transfer ownership of bees or used bee equipment--Copy to recipient of bees--Violation as misdemeanor.
No person may sell, offer for sale, give away, or transfer ownership of any apiary, bees, or used bee equipment within this state without receiving a certificate of inspection from the secretary issued within six months prior to the disposition. The seller or giver shall issue a copy of the certificate to the purchaser or person receiving the colony at the time of delivery. A violation of this section is a Class 2 misdemeanor.
Source: SL 1947, ch 6, § 13; SL 1959, ch 2, § 8; SDC Supp 1960, § 4.1113; SL 1976, ch 243, § 17; SL 1984, ch 265, § 2; SL 1986, ch 330, § 30.
38-18-27. Request to enter compliance agreement or for additional inspections by departmental personnel--Fees and expenses.
Any person may request to enter into a compliance agreement with the secretary or that the secretary make additional inspections of bees, bee equipment, or honey houses. The person requesting the agreement shall pay a fee of fifty dollars per compliance agreement. If an inspection is conducted, the person requesting the inspection shall pay the secretary any extra expense incidental to such inspection plus mileage and per diem for inspectors' expenses.
Source: SL 1947, ch 6, § 16; SDC Supp 1960, § 4.1115; SL 1986, ch 330, § 31; SL 1992, ch 280, § 11; SL 2001, ch 215, § 35.
38-18-28. Promulgation of rules by secretary.
The secretary, pursuant to the provisions of chapter 1-26, may promulgate rules consistent with the following:
(1) To provide application forms and guidelines for location and colony registration and entrance permits;
(2) To provide standards to allow apiaries to be located within three miles of each other on a temporary or permanent basis;
(3) To provide for denial or revocation of locations or permits;
(4) To provide standards and procedures for handling diseased bees and bee equipment;
(5) To provide standards and procedures for an apiary inspection program;
(6) To provide standards and procedures for quarantine of bees, equipment and premises and areas and for lifting of quarantines;
(7) To provide standards and inspection procedures for honey houses;
(8) To provide standards and procedures for the seizure of unlawfully imported bees and bee equipment;
(9) To provide forms and standards to issue certificates of health or inspection for bees;
(10) To provide a procedure for contested cases;
(11) To provide standards for identification of apiaries;
(12) To provide standards and procedures for treatment and control of pests;
(13) To establish restrictions on the movement of quarantined bees or equipment and standards for the inspection, treatment, disposal, certification, permitting, and assignment of specified travel routes, locations and procedures for quarantined bees or equipment;
(14) To provide standards for compliance agreements;
(15) To provide standards for incidental expenses.
Source: SL 1947, ch 6, § 19; SDC Supp 1960, § 4.1117; SL 1986, ch 326, § 26; SL 1986, ch 330, § 32; SL 1992, ch 280, § 12.
38-18-28.1. Restriction on movement of bees and related articles from quarantined area--Promulgation of rules.
The secretary may promulgate rules, pursuant to the provisions of chapter 1-26, establishing restrictions on movement of bees or any other related article from a quarantined area within or without the state to any other area within or without the state. Such rules shall include standards, which may include procedures for inspection, treatment, disposal, certification, permitting, or assignment of specific traveling routes and locations.
Source: SL 1986, ch 326, § 27.
38-18-31. Promotion of honey and by-products.
The department may engage in activities provided for in § 38-18-34 for the purpose of promoting the processing, marketing, sale, and consumption of honey and honey by-products produced in this state.
Source: SL 1991, ch 324, § 2.
38-18-32. Definitions.
Terms used in §§ 38-18-31 to 38-18-37, inclusive, mean:
(1) "Bee location," any quarter section or smaller portion of land where apiaries may be kept;
(2) "Department," the Department of Agriculture and Natural Resources;
(3) "Honey producer" or "beekeeper," any person, firm or corporation engaged in the act of raising, harboring, keeping, or breeding domesticated honey bees for the pollination of crops or the production of honey, beeswax, or by-products, either for personal or commercial use;
(4) "Honey by-product," any item using honey as a base such as creamed honey or whipped honey;
(5) "Participation producer," a honey producer or beekeeper who has not requested a refund from the payment of assessments on a bee location for any particular year.
Source: SL 1991, ch 324, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-18-33. Honey industry fund.
Funds collected pursuant to §§ 38-18-31 to 38-18-37, inclusive, shall be deposited with the state treasurer in a special fund known as the honey industry fund. Expenditures of these funds shall be made pursuant to the provisions of chapter 4-7.
Source: SL 1991, ch 324, § 3.
38-18-34. Administration of honey industry fund--Donation--Expenditures.
In the administration of §§ 38-18-31 to 38-18-37, inclusive, the department may:
(1) Contract and cooperate with any person or group for the administration of the honey industry fund;
(2) Contract and cooperate with any person or with any governmental department or agency for research, education, and transportation;
(3) Expend the funds collected pursuant to §§ 38-18-31 to 38-18-37, inclusive, and appropriated for its administration;
(4) Accept donations of funds, property, services, or other assistance from public or private sources for the purpose of furthering the objectives of §§ 38-18-31 to 38-18-37, inclusive;
(5) Expend up to ten percent of the honey industry fund for department administrative costs associated with the administration of the honey industry fund.
Source: SL 1991, ch 324, § 4.
38-18-35. Promulgation of rules for honey industry fund.
The department may promulgate rules pursuant to chapter 1-26 concerning:
(1) The procedures for obtaining a declaratory ruling;
(2) The procedures for collecting assessments for bee locations;
(3) The procedures for collecting delinquent assessments;
(4) The record-keeping and reporting requirements of honey producers or beekeepers with bee locations within the state.
Source: SL 1991, ch 324, § 5.
38-18-36. Annual honey assessment.
There is hereby imposed upon each bee location within the state, at the time of registration, a continuing annual assessment of one dollar per location. The Department of Agriculture and Natural Resources shall collect and deposit the funds in the honey industry fund.
Source: SL 1991, ch 324, § 7; SL 1993, ch 303; SL 2001, ch 215, § 5; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-18-37. Dissemination of information and instruction concerning honey assessment.
The department shall develop and disseminate information and instruction relating to the purpose of the honey assessment and to this purpose shall cooperate with state and federal governmental agencies and private businesses engaged in the purchase of honey.
Source: SL 1991, ch 324, § 8.
CHAPTER 38-19
COMMERCIAL FERTILIZER
38-19-1 Definition of terms.
38-19-2 38-19-2. Repealed by SL 1982, ch 281, § 4
38-19-2.1 Commercial fertilizer distribution license required--Fee--Penalty for violation--Notice.
38-19-2.2 Name and address required on application for distribution license and to appear on other materials of licensee.
38-19-3 38-19-3. Repealed by SL 1982, ch 281, § 5
38-19-3.1 38-19-3.1, 38-19-3.2. Repealed by SL 2001, ch 215, §§ 10, 11
38-19-4 38-19-4. Repealed by SL 1982, ch 281, § 8
38-19-4.1 38-19-4.1. Repealed by SL 2001, ch 215, § 12
38-19-5 Guaranteed analysis defined.
38-19-6 38-19-6 to 38-19-9. Repealed by SL 1982, ch 281, §§ 11 to 14
38-19-10 Inspection fee on fertilizer distributed in state--Rules.
38-19-10.1 Additional inspection fee deposited in precision agriculture fund.
38-19-11 38-19-11. Repealed by SL 1982, ch 281, § 16
38-19-12 Annual tonnage report--Inspection fees.
38-19-13 38-19-13. Repealed by SL 1982, ch 281, § 18
38-19-14 Fertilizer fund--Administration--Expenditures.
38-19-15 Labels required for fertilizer in containers--Contents.
38-19-16 Information to accompany bulk shipments--Fertilizer formulated under specifications furnished by consumer.
38-19-16.1 Labeling requirements applied to sewage sludge distributor--Availability of analyses.
38-19-17 Fertilizer deemed misbranded.
38-19-18 Fertilizer deemed adulterated.
38-19-19 Sale or distribution of adulterated or misbranded fertilizer as misdemeanor.
38-19-20 38-19-20. Repealed by SL 2001, ch 215, § 15
38-19-21 38-19-21 to 38-19-23. Repealed by SL 1982, ch 281, §§ 24 to 26
38-19-23.1 38-19-23.1. Repealed by SL 1977, ch 308, § 1
38-19-24 Intimate and uniform mixture required in custom mixing.
38-19-25 38-19-25. Repealed by SL 1982, ch 281, § 28
38-19-26 Guaranteed analysis of custom mix or fertilizer materials.
38-19-27 Sales and exchanges to manufacturers and mixers exempt from requirements.
38-19-28 Recommendation of grades of fertilizers for use in state--Publication of recommended lists.
38-19-29 38-19-29. Repealed by SL 1982, ch 281, § 29
38-19-30 Inspection and sampling to determine compliance with chapter.
38-19-30.1 Proof of claims required of licensed applicant or registrant--Sources of proof.
38-19-31 Manner of drawing and sealing official samples--Forwarding to director of laboratories.
38-19-32 Examination of samples and reports by director of laboratories.
38-19-33 Analytical methods used by director of laboratories.
38-19-34 Publication of analyses--Dissemination of information.
38-19-35 Annual publication of fertilizer data and analysis results--Separation by semiannual periods.
38-19-36 Rules and regulations for labeling, storage, and distribution.
38-19-36.1 Rules for siting of ammonia, fertilizer, and fertilizer production facilities.
38-19-36.2 Operation of bulk commercial fertilizer storage facility without permit prohibited--Rules--Revocation of permit--Violation as misdemeanor.
38-19-36.3 Civil penalty--Injunctive relief.
38-19-36.4 "Anhydrous ammonia" defined.
38-19-36.5 Mishandling anhydrous ammonia or tampering with equipment and facilities prohibited--Violation as felony--Civil penalty.
38-19-36.6 Action for damages against certain persons unavailable to person who tampers with equipment.
38-19-36.7 Section 38-19-36.6 not applicable against unlawful possessor of anhydrous ammonia.
38-19-36.8 Assumption of risk by person tampering with anhydrous ammonia--Immunity from liability for owners.
38-19-36.9 Owner of anhydrous ammonia defined.
38-19-36.10 Tampering defined.
38-19-37 Secretary charged with enforcement--Access to property and records.
38-19-37.1 Secretary to be given copies of labels and labeling.
38-19-38 Stop-sale orders against fertilizer in violation.
38-19-39 Seizure and condemnation of fertilizer in violation--Disposal--Release to claimant.
38-19-40 Injunction to prevent violations.
38-19-41 Violation of chapter, rule or regulation as misdemeanor.
38-19-42 38-19-42. Repealed by SL 1982, ch 281, § 30
38-19-43 Discretion in prosecution of minor violations--Warning.
38-19-44 38-19-44. Repealed by SL 1982, ch 281, § 31
38-19-45 Severability of provisions.
38-19-46 Promulgation of rules for transportation, use, application, disposal, or notice of fertilizer application.
38-19-47 Refusal or cancellation of commercial fertilizer distribution license for noncompliance--Opportunity to be heard.
38-19-48 Nutrient research and education fund created.
38-19-49 Deposit of inspection fees into nutrient research and education fund--Purposes of disbursements.
38-19-50 Nutrient Research and Education Council created--Membership.
38-19-51 Duties of Nutrient Research and Education Council.
38-19-1. Definition of terms.
Terms, as used in this chapter, mean:
(1) "Available phosphoric acid," the sum of the water-soluble and the citrate-soluble phosphoric acid and reported as phosphorus pentoxide;
(2) "Brand," a term, design, or trademark used in connection with one or several grades of commercial fertilizer;
(3) "Bulk commercial fertilizer," any volume of a commercial fertilizer which is transported or held for resale in an immediate reusable container in undivided quantities greater than one hundred pounds net dry weight or fifty-five U.S. gallons liquid measure;
(4) "Bulk commercial fertilizer storage facility," any area, location, tract of land, building, structure, or premises constructed in accordance with rules promulgated by the secretary for the storage of bulk commercial fertilizer;
(5) "Commercial fertilizer," any substance, including manipulated manure, containing any recognized plant nutrient which is used for its plant nutrient content and which is designed for use or claimed to have value in promoting plant growth, except unmanipulated animal and vegetable manures, marl, lime, limestone, lime sludge, sewage sludge, wood ashes, gypsum, compost, and other products excluded by rule;
(5A) "Compost," a group of organic residues or a mixture of organic residues and soil that have been piled, moistened, and allowed to undergo aerobic biological decomposition;
(6) "Distribute," to import, consign, manufacture, produce, compound, mix, or blend commercial fertilizer, or to offer for sale, sell, barter, or otherwise supply commercial fertilizer in this state;
(7) "Distributor," any person who distributes commercial fertilizer in this state;
(8) "Fertilizer material," a commercial fertilizer which either:
(a) Contains important quantities of no more than one of the primary plant nutrients: nitrogen, phosphoric acid, and potash;
(b) Has approximately eighty-five percent of its plant nutrient content present in the form of a single chemical compound; or
(c) Is derived from a plant or animal residue or by-product or a natural material deposit which has been processed in such a way that its content of primary plant nutrients has not been materially changed except by purification and concentration;
(9) "Grade," the percentage of total nitrogen, available phosphoric acid, and soluble potash stated in whole numbers in the same terms, order, and percentages as in the guaranteed analysis. However, speciality fertilizers may be guaranteed in fractional units of less than one percent of total nitrogen, available phosphoric acid, and soluble potash. Fertilizer materials, bone meal, manures, and similar raw materials may be guaranteed in fractional units;
(10) "Investigational allowance," allowance for variations inherent in the taking, preparation, and analysis of an official sample of commercial fertilizer;
(11) "Label," a display of written, printed, or graphic matter on or attached to the immediate container of any article and the outside container or wrapper of the retail package, or a statement or document accompanying a commercial fertilizer;
(12) "Labeling," all written, printed, or graphic matter, upon or accompanying any commercial fertilizer or advertisements, brochures, posters, television, and radio announcements used in promoting the sale of commercial fertilizer;
(13) "Licensee," any person who receives a license to distribute a commercial fertilizer under the provisions of this chapter;
(13A) "Manipulated manure," any animal or vegetable manure collected or stored in a manner consistent with practices commonly implemented in agricultural production that has been subjected to practices including composting, mechanical dewatering, or pelletizing or altered in any way to change chemical, physical, or biological characteristics;
(14) "Metric ton," a net weight of one thousand kilograms;
(15) "Mixed fertilizer," a commercial fertilizer containing any combination or mixture of fertilizer materials;
(16) "Nitrogen," the element of nitrogen;
(17) "Official sample," any sample of commercial fertilizer taken by the secretary of agriculture and natural resources or department agent according to methods prescribed by this chapter;
(18) "Percent" or "percentage," the percentage by weight;
(19) "Primary nutrients," nitrogen, available phosphoric acid, and soluble potash;
(20) "Recognized plant nutrients," primary nutrients, secondary nutrients, and micro nutrients;
(21) Deleted by SL 2001, ch 215, § 7;
(22) "Secondary and micro nutrients," those nutrients other than primary nutrients that are essential for the normal growth of plants and that may need to be added to the growth medium. Secondary plant nutrients include calcium, magnesium, and sulfur; micro plant nutrients include boron, chlorine, cobalt, copper, iron, manganese, molybdenum, sodium, and zinc;
(23) "Secretary," the secretary of the Department of Agriculture and Natural Resources;
(24) "Sell:"
(a) The act of selling, transferring ownership;
(b) The offering and exposing for sale, exchange, or distribution;
(c) Giving away; or
(d) Receiving, accepting, holding or possession for sale, exchange, or distribution;
(25) "Sewage sludge," "sludge," "biosolids," any solid, semisolid, or liquid residue removed during the treatment of municipal or domestic sewage by publicly-owned treatment works regulated under 40 CFR Part 503, as amended to January 1, 1995, and the Clean Water Act as amended to January 1, 1995;
(26) "Soluble potash," that portion of the potash contained in fertilizers or fertilizer materials which is soluble in an aqueous ammoniacal solution of 0.8% ammonium oxalate, after boiling in a 1.14% solution of ammonium oxalate and reported as potassium oxide;
(27) "Ton," a net weight of two thousand pounds avoirdupois.
Source: SL 1949, ch 85, § 2; SDC Supp 1960, § 22.1702; SL 1966, ch 66, §§ 1, 2; SL 1982, ch 281, § 1; SL 1986, ch 331, §§ 1, 2; SL 1988, ch 315, § 2; SL 1995, ch 324, §§ 1 to 3; SL 2001, ch 215, § 7; SL 2015, ch 203, § 13; SL 2016, ch 200, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-2.1. Commercial fertilizer distribution license required--Fee--Penalty for violation--Notice.
No person whose name appears on the label of a commercial fertilizer or who manufactures or mixes a commercial fertilizer in this state may distribute that fertilizer until the person has obtained a distribution license from the secretary of agriculture and natural resources. A distribution license is required for each location where commercial fertilizer is manufactured or mixed. The license may be granted only after payment of a fee of twenty-five dollars by the licensee. Each license expires on the thirty-first day of December of the year after the date of issuance. Any distribution license application for renewal received after the thirty-first day of January of any year shall be assessed a late payment fee equal to the original license fee, which shall be added to the original fee and shall be paid by the applicant before the renewal license is issued. Any person who fails to obtain the proper license is subject to a civil penalty not to exceed one thousand dollars per violation. Notice shall be given by registered mail prior to the imposition of any civil penalty.
Source: SL 1982, ch 281, § 2; SL 1987, ch 286; SL 2001, ch 215, § 8; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-2.2. Name and address required on application for distribution license and to appear on other materials of licensee.
An application for a commercial fertilizer distribution license shall include the name and address of the licensee. The licensee's name and address as it appears on the license shall appear on all labels and pertinent invoices used by the licensee and on all bulk storage units operated by the licensee in this state.
Source: SL 1982, ch 281, § 3; SL 2001, ch 215, § 9.
38-19-5. Guaranteed analysis defined.
The term, guaranteed analysis, means the minimum percentage of plant nutrients claimed in the following order and form:
(1) Total nitrogen (N) ____________ percent
Available phosphoric acid (P2O5) or available phosphate ____________ percent
Soluble potash (K2O) ____________ percent
(2) For unacidulated mineral phosphatic materials and basic slag, both total and available phosphoric acid and the degree of fineness shall be stated. For bone, tankage, and other organic phosphatic materials, total phosphoric acid shall be stated.
(3) Guarantees for plant nutrients other than nitrogen, phosphoric acid, and potash may be permitted or required by regulations of the secretary of agriculture and natural resources. The guarantees for such other nutrients shall be expressed in the form of the element. The sources of such other nutrients (oxides, salt, chelates, etc.) may be required to be stated on the application for registration and may be included as a parenthetical statement on the label. Other beneficial substances or compounds, determinable by laboratory methods, also may be guaranteed by permission of the secretary and with the advice of the director of the agricultural experiment station. When any plant nutrients or other substances or compounds are guaranteed they shall be subject to inspection, analysis, and minimum standards in accord with the methods prescribed by this chapter and the regulations promulgated hereunder.
Source: SDC Supp 1960, § 22.1702 (20) (a) as added by SL 1966, ch 66, § 2; SL 1982, ch 281, § 10; SL 2015, ch 203, § 14; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-10. Inspection fee on fertilizer distributed in state--Rules.
Each licensed distributor of commercial fertilizer shall pay to the secretary of agriculture and natural resources for all commercial fertilizer distributed in this state an inspection fee in accordance with the provisions of § 38-19-12, not to exceed seventy-five cents per ton. The secretary of agriculture and natural resources shall promulgate rules pursuant to chapter 1-26 to establish the inspection fee.
Source: SL 1949, ch 85, § 4; SDC Supp 1960, § 22.1704 (1); SL 1982, ch 281, § 15; SL 1989, ch 306, § 54; SL 1993, ch 304, § 1; SL 2001, ch 215, § 13; SL 2016, ch 201, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-10.1. Additional inspection fee deposited in precision agriculture fund.
In addition to the fee imposed by § 38-19-10, each licensed distributor of commercial fertilizer shall pay to the secretary of agriculture and natural resources for all commercial fertilizer distributed in this state an inspection fee of twenty-five cents per ton in accordance with the provisions of § 38-19-12. Notwithstanding the provisions of § 38-19-14, the fee imposed by this section shall be deposited in the precision agriculture fund created pursuant to § 13-49-38.
Source: SL 2018, ch 123, § 9; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
Commission Note: This section is repealed pursuant to SL 2018, ch 123, § 11 on the first day of the fiscal year following a determination by the Board of Regents that the bonds authorized pursuant to SL 2018, ch 123, § 4 are satisfied and paid in full.
38-19-12. Annual tonnage report--Inspection fees.
Each licensed distributor of commercial fertilizer shall file with the secretary of agriculture and natural resources on forms furnished by the secretary an annual statement for the period ending December thirty-first setting forth the number of net tons of each grade of commercial fertilizer distributed in this state during the reporting period. The report is due on or before the thirty-first of January following the close of the reporting period and on the basis of the statement each licensed distributor of commercial fertilizer shall pay the inspection fee at the rate pursuant to § 38-19-10. If more than one person is involved in the distribution of a commercial fertilizer, the distributor who imports, manufactures, or produces the commercial fertilizer is responsible for the inspection fee on products produced or brought into this state. The distributor shall separately list the inspection fee on the invoice to the licensee. The last licensee shall retain the invoices showing proof of inspection fees paid for three years and shall pay the inspection fee on commercial fertilizer brought into this state unless the distributor has reported and paid the fees. If the tonnage report is not filed and the payment of inspection fee is not made within thirty days after the end of the period, a collection fee amounting to ten percent of the amount shall be assessed against the licensee and the amount of fees due constitutes a debt and becomes the basis of a judgment against the licensee. However, the minimum inspection fee is ten dollars. The secretary may verify the records on which statements of tonnage are based and each licensed distributor of commercial fertilizer shall grant the secretary permission to verify the records on the licensee's application for license and on each tonnage report. The secretary may revoke or refuse to renew the license of any licensee failing to comply with this section. No information furnished under this section may be disclosed by the secretary or anyone having access to tonnage reports if the disclosure will in any way divulge any part of the operations of a licensee.
Source: SL 1949, ch 85, § 4; SDC Supp 1960, § 22.1704 (1); SL 1982, ch 281, § 17; SL 2001, ch 215, § 36; SL 2015, ch 203, § 15; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-14. Fertilizer fund--Administration--Expenditures.
Fees collected pursuant to this chapter shall be deposited with the state treasurer in a special revenue fund known as the fertilizer fund. This fund shall consist of moneys from public and private sources including legislative appropriations, federal grants, gifts, and the fees received pursuant to this chapter. The fund shall be maintained separately and be administered by the department in order to defray the expenses of all activities associated with administering the fertilizer program and to provide funding for fertilizer-related, nutrient-related, and water quality-related research and education-related purposes as provided in § 38-19-49. Expenditures from the fund shall be appropriated through the normal budget process. Unexpended funds and interest shall remain in the fund until appropriated by the Legislature.
Source: SL 1949, ch 85, § 4; SDC Supp 1960, § 22.1704 (4); SL 1993, ch 304, § 2; SL 2016, ch 201, § 3.
38-19-15. Labels required for fertilizer in containers--Contents.
Any commercial fertilizer distributed in this state in containers shall have placed on or affixed to the container a label setting forth in clearly legible and conspicuous form the following information:
(1) Net weight;
(2) Brand and grade;
(3) Guaranteed analysis;
(4) The source or sources from which the nitrogen phosphorus and potassium are derived; and
(5) Name and address of licensee or registrant.
Source: SL 1949, ch 85, § 5; SDC Supp 1960, § 22.1705 (1); SL 1982, ch 281, § 19; SL 2015, ch 203, § 16.
38-19-16. Information to accompany bulk shipments--Fertilizer formulated under specifications furnished by consumer.
In the case of bulk shipments, a label stating the information required by § 38-19-15 shall accompany delivery and be supplied to the purchaser at time of delivery in written or printed form. A commercial fertilizer formulated according to specifications which are furnished by a consumer prior to mixing shall be labeled to show the net weight, guaranteed analysis, and the name and address of the licensee or registrant.
Source: SL 1949, ch 85, § 5; SDC Supp 1960, § 22.1705(2); SL 1982, ch 281, § 20; SL 1986, ch 331, § 3.
38-19-16.1. Labeling requirements applied to sewage sludge distributor--Availability of analyses.
Any distributor of sewage sludge, as defined in § 38-19-1, shall comply with provisions of § 38-19-15 or 38-19-16, whichever is applicable. Any distributor shall make available, upon request, any analyses or information about the sewage sludge to the Department of Agriculture and Natural Resources and the end user of the product.
Source: SL 1995, ch 324, § 4; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-17. Fertilizer deemed misbranded.
For the purposes of this chapter, a commercial fertilizer is deemed to be misbranded:
(1) If the label or labeling carries any false or misleading statement either as to the materials contained in the fertilizer or concerning its agricultural value;
(2) If it be so labeled or branded as to deceive or mislead the purchaser; or
(3) If it is not labeled to give all the information required by §§ 38-19-15 and 38-19-16 and such additional information as may be required by rule promulgated pursuant to the provisions of chapter 1-26 and issued by the secretary of agriculture and natural resources as provided in § 38-19-36.
Source: SL 1949, ch 85, § 6; SDC Supp 1960, § 22.1706(2); SL 1986, ch 326, § 28; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-18. Fertilizer deemed adulterated.
For the purposes of this chapter, a commercial fertilizer is deemed to be adulterated:
(1) If it contains any deleterious or harmful ingredient in sufficient amount to render it injurious to beneficial plant life when applied in accordance with directions for use on the label, or if adequate warning statements or directions for use, which may be necessary to protect plant life, are not shown on the label;
(2) If its composition falls below or differs from that which it is purported to possess by its labeling;
(3) If it contains unwanted crop seed or weed seed; or
(4) If it contains any deleterious or harmful ingredient in sufficient amount that, if the product is used in accordance with label instructions, it renders the commodity that is derived from the treated crop injurious to humans, wildlife, livestock, or the environment or renders the commodity unsaleable.
Source: SL 1949, ch 85, § 6; SDC Supp 1960, § 22.1706 (1); SL 1982, ch 281, § 21; SL 2001, ch 215, § 14.
38-19-19. Sale or distribution of adulterated or misbranded fertilizer as misdemeanor.
It is a Class 2 misdemeanor to sell, distribute, offer, or expose for sale or distribution any commercial fertilizer which is adulterated or misbranded.
Source: SL 1949, ch 85, § 6; SDC Supp 1960, § 22.1706 (3); SL 1977, ch 190, § 324.
38-19-24. Intimate and uniform mixture required in custom mixing.
A licensee shall at all times produce an intimate and uniform mixture of fertilizer materials. When two or more fertilizer materials are delivered in the same load, they shall be intimately and uniformly mixed unless they are in separate compartments. To provide for intimate and uniform mixture of fertilizer materials, the secretary, pursuant to the provisions of chapter 1-26, may promulgate rules to establish good manufacturing practices.
Source: SDC Supp 1960, § 22.1703(2)(b) as enacted by SL 1966, ch 66, § 3; SL 1982, ch 281, § 27; SL 1986, ch 326, § 30.
38-19-26. Guaranteed analysis of custom mix or fertilizer materials.
In lieu of the guaranteed analysis, the person who mixes to the customer's order must furnish to the purchaser and consumer a written or printed statement showing the weight and guaranteed analysis of each of the fertilizer materials used in the intimate mixture or delivered in each of the separate compartments in the load.
Source: SDC Supp 1960, § 22.1703 (2) (c) as enacted by SL 1966, ch 66, § 3.
38-19-27. Sales and exchanges to manufacturers and mixers exempt from requirements.
Nothing in this chapter shall be construed to restrict or avoid sales or exchanges of commercial fertilizers to each other by importers, manufacturers, or manipulators who mix fertilizer materials for sale, or as preventing the free and unrestricted shipments of commercial fertilizers to manufacturers or manipulators who have registered their brands as required by the provisions of this chapter.
Source: SL 1949, ch 85, § 16; SDC Supp 1960, § 22.1716.
38-19-28. Recommendation of grades of fertilizers for use in state--Publication of recommended lists.
The secretary of agriculture and natural resources may in his discretion hold public hearing open to all interested parties and with the aid of available and impartial data promulgate a list of grades of mixed fertilizers recommended as adapted to the agricultural needs of the state. Immediately after such hearing or as nearly as practicable thereafter it shall be the duty of the secretary with the cooperation of the agricultural experiment station and the extension service to give wide publicity to such list of adapted grades of mixed fertilizers so the consumers may profit by this information and avoid loss of time and money by the use of fertilizers not adapted to their soil needs.
Source: SL 1949, ch 85, § 9; SDC Supp 1960, § 22.1709; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-30. Inspection and sampling to determine compliance with chapter.
It shall be the duty of the secretary of agriculture and natural resources, who may act through his authorized agents, to inspect and sample commercial fertilizers offered for sale, sold, or distributed within this state at such time and place and to such an extent as he may deem necessary to determine whether such commercial fertilizers are in compliance with the provisions of this chapter, and the secretary shall have the further authority to obtain such additional information as he may deem advisable.
Source: SL 1949, ch 85, § 7; SDC Supp 1960, § 22.1707 (1); SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-30.1. Proof of claims required of licensed applicant or registrant--Sources of proof.
The secretary of agriculture and natural resources may require a license applicant or registrant to furnish proof of claims made for any product covered by this chapter and may require proof of value when used as directed or recommended. The secretary shall rely on replicate, or the data derived therefrom, performed by a reputable investigator. The experimental data shall be obtained under conditions similar to those in this state under which the product is intended to be used. The secretary may accept or reject other sources of proof as additional evidence.
Source: SL 1982, ch 281, § 22; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-31. Manner of drawing and sealing official samples--Forwarding to director of laboratories.
An official fertilizer sample shall be one drawn in the manner prescribed by the secretary of agriculture and natural resources from a lot or shipment of fertilizer sold or exposed for sale in this state. In sampling a lot of commercial fertilizer packaged in small containers (less than five pounds each) a single package may constitute the official sample. All samples collected shall be sealed and marked with identifying marks in the presence of the dealer or person from whom taken, and shall be promptly forwarded to the director of laboratories for examination.
Source: SL 1949, ch 85, § 7; SDC Supp 1960, § 22.1707 (2); SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-32. Examination of samples and reports by director of laboratories.
It shall be the duty of the director of laboratories to examine all samples submitted under the provisions of this chapter and to report results promptly to the secretary of agriculture and natural resources.
Source: SL 1949, ch 85, § 7; SDC Supp 1960, § 22.1707 (2); SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-33. Analytical methods used by director of laboratories.
The methods of analysis shall be those adopted by the secretary of agriculture and natural resources, through rules promulgated pursuant to the provisions of chapter 1-26, from published sources such as those of the association of official analytical chemists.
Source: SL 1949, ch 85, § 7; SDC Supp 1960, § 22.1707(3); SL 1986, ch 326, § 31; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-34. Publication of analyses--Dissemination of information.
The secretary of agriculture and natural resources shall have authority to publish analyses of all products within the purview of this chapter and to gather and disseminate for the benefit of the public useful information concerning fertilizers and fertilizer materials.
Source: SL 1919, ch 207, § 6; SDC 1939, § 22.1701; SL 1949, ch 85, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-35. Annual publication of fertilizer data and analysis results--Separation by semiannual periods.
The secretary of agriculture and natural resources shall publish at least annually, in such forms as he may deem proper, information concerning the sales of commercial fertilizers, together with such data on their production and use as he may consider advisable, and report of the results of the analyses based on official samples of commercial fertilizers sold within the state as compared with the analyses guaranteed under § 38-19-15. Provided, however, that the information concerning production and use of commercial fertilizers shall be shown separately for the periods July first to December thirty-first and January first to June thirtieth of each year, and no disclosure shall be made of the operations of any person.
Source: SL 1949, ch 85, § 11; SDC Supp 1960, § 22.1711; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-36. Rules and regulations for labeling, storage, and distribution.
For enforcement of this chapter, the secretary of agriculture and natural resources may promulgate, pursuant to the provisions of chapter 1-26, rules relating to labeling, storage, licensing, sampling, inspection, analysis, and distribution of commercial fertilizers to carry into effect the full intent and meaning of this chapter.
Source: SL 1949, ch 85, § 12; SDC Supp 1960, § 22.1712; SL 1966, ch 66, § 5; SL 1986, ch 326, § 32; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-36.1. Rules for siting of ammonia, fertilizer, and fertilizer production facilities.
The secretary, pursuant to the provisions of chapter 1-26, may promulgate rules for siting of anhydrous ammonia storage facilities, for commercial fertilizer storage facilities and for commercial fertilizer production facilities.
Source: SL 1986, ch 326, § 34.
38-19-36.2. Operation of bulk commercial fertilizer storage facility without permit prohibited--Rules--Revocation of permit--Violation as misdemeanor.
No person may establish or operate a bulk commercial fertilizer storage facility without obtaining a bulk commercial fertilizer storage facility permit from the secretary. The secretary may establish by rule, promulgated pursuant to chapter 1-26, a bulk commercial fertilizer storage facility permit system and operational requirements necessary for secondary containment of bulk commercial fertilizer for the protection of the environment and human health. The secretary may require that appropriate plans and specifications for construction and operation of a bulk commercial fertilizer storage facility be submitted for approval prior to the issuance, modification, suspension, or revocation of a permit. If a bulk commercial fertilizer storage facility is operating in violation of the permit requirements established pursuant to rules promulgated under this section, the secretary may grant a reasonable period of time for the facility to comply with the rules. If the facility does not comply with the rules in the prescribed period of time, the secretary shall revoke the operating permit pursuant to chapter 1-26. Any person operating a bulk commercial fertilizer storage facility without a permit issued pursuant to this section, or operating with a revoked permit, is guilty of a Class 1 misdemeanor.
Source: SL 1988, ch 315, § 3.
38-19-36.3. Civil penalty--Injunctive relief.
Any person who operates a bulk commercial fertilizer storage facility without a permit or who violates the bulk commercial fertilizer storage facility permit provision of this section and §§ 38-19-1 and 38-19-36.2 is subject to a civil action in circuit court for the recovery of a civil penalty not to exceed five hundred dollars for each day of violation. In addition, the secretary, through the attorney general's office, may enforce the provisions of this section and §§ 38-19-1 and 38-19-36.2 by means of injunctive and declaratory relief in circuit court.
Source: SL 1988, ch 315, § 4.
38-19-36.4. "Anhydrous ammonia" defined.
For the purposes of §§ 38-19-36.4 to 38-19-36.7, inclusive, the term, anhydrous ammonia, means a compound formed by the chemical combination of the elements nitrogen and hydrogen in the molar proportion of one part nitrogen to three parts hydrogen as shown by the chemical formula NH3. On a weight basis, the ratio is fourteen parts nitrogen to three parts hydrogen or approximately eighty-two percent nitrogen to eighteen percent hydrogen. Anhydrous ammonia may exist in either a gaseous or a liquid state.
Source: SL 2001, ch 216, § 1.
38-19-36.5. Mishandling anhydrous ammonia or tampering with equipment and facilities prohibited--Violation as felony--Civil penalty.
No person may:
(1) Place, have placed, or possess anhydrous ammonia in a container that is not designed, constructed, maintained, and authorized to contain or transport anhydrous ammonia;
(2) Transport anhydrous ammonia in a container that is not designed, constructed, maintained, and authorized to transport anhydrous ammonia;
(3) Use, deliver, receive, sell, or transport a container designed and constructed to contain anhydrous ammonia without the express consent of the owner or authorized custodian of the container; or
(4) Tamper with any equipment or facility used to contain, store, or transport anhydrous ammonia.
For the purposes of this section, containers designed and constructed for the storage and transport of anhydrous ammonia are described in the Code of Federal Regulations, title 49 as of January 1, 2001. Any person who violates the provisions of this section is guilty of a Class 5 felony or is subject to a civil penalty not to exceed fifty thousand dollars or both.
Source: SL 2001, ch 216, § 2.
38-19-36.6. Action for damages against certain persons unavailable to person who tampers with equipment.
Except as provided in § 38-19-36.7, a person tampering with anhydrous ammonia containers or equipment under § 38-19-36.5 has no cause of action for damages arising out of the tampering against:
(1) The owner or lawful custodian of the container or equipment;
(2) A person responsible for the installation or maintenance of the container or equipment; or
(3) A person lawfully selling or offering for sale the anhydrous ammonia.
Source: SL 2001, ch 216, § 3.
38-19-36.7. Section 38-19-36.6 not applicable against unlawful possessor of anhydrous ammonia.
The provisions of § 38-19-36.6 do not apply to a cause of action against a person who unlawfully obtained the anhydrous ammonia or anhydrous ammonia container or who possesses the anhydrous ammonia or anhydrous ammonia container for any unlawful purpose.
Source: SL 2001, ch 216, § 4.
38-19-36.8. Assumption of risk by person tampering with anhydrous ammonia--Immunity from liability for owners.
Any person tampering with or assisting in tampering with anhydrous ammonia assumes the risk of personal injury, death, and any other economic or noneconomic loss or damage arising from tampering with or assisting in tampering with anhydrous ammonia. An owner of anhydrous ammonia is not liable to such person for personal injury, death, or any other economic or noneconomic loss or damage arising out of tampering with or assisting in tampering with anhydrous ammonia, except in any case in which such loss or damage was caused by conduct of the owner that was willful, wanton, reckless, or grossly negligent.
Source: SL 2004, ch 258, § 1.
38-19-36.9. Owner of anhydrous ammonia defined.
For purposes of this §§ 38-19-36.8 to 38-19-36.10, inclusive, the term, owner of anhydrous ammonia, means any person who, for any lawful purpose:
(1) Owns anhydrous ammonia;
(2) Owns a container, equipment, or storage facility containing anhydrous ammonia;
(3) Is responsible for the installation or operation of a container, equipment, or storage facility containing anhydrous ammonia;
(4) Sells anhydrous ammonia;
(5) Purchases anhydrous ammonia; or
(6) Operates or uses anhydrous ammonia containers, equipment, or storage facilities.
Source: SL 2004, ch 258, § 2.
38-19-36.10. Tampering defined.
For the purposes of §§ 38-19-36.8 to 38-19-36.10, inclusive, the term, tampering, means unlawfully releasing, transferring, or attempting to release or transfer anhydrous ammonia from its present container, equipment, or storage facility to another container, equipment, or storage facility or the subsequent transport of such anhydrous ammonia.
Source: SL 2004, ch 258, § 3.
38-19-37. Secretary charged with enforcement--Access to property and records.
The secretary of agriculture and natural resources is charged with the administration and enforcement of this chapter and he and his deputies, assistants, agents, and employees shall have all the rights of visitation, inspection, sampling, examination, and access to places, property, containers and records, and prosecution, as the same are provided in this title or in any of the chapters of Title 39.
Source: SL 1919, ch 207, § 6; SDC 1939, § 22.1701; SL 1949, ch 85, § 1; SL 1986, ch 326, § 33; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-37.1. Secretary to be given copies of labels and labeling.
Each license applicant or licensee shall, upon request of the secretary, furnish copies of labels and labeling in order to permit the secretary to determine compliance with the provisions of this chapter.
Source: SL 2001, ch 215, § 16.
38-19-38. Stop-sale orders against fertilizer in violation.
It shall be the duty of the secretary of agriculture and natural resources to issue and enforce written or printed "stop-sale, use, or removal" order to the owner or custodian of any lot of commercial fertilizer and to hold at a designated place when the secretary finds said commercial fertilizer is being offered or exposed for sale in violation of any of the provisions of this chapter or any regulation issued hereunder, until the law has been complied with and said commercial fertilizer is released in writing by the secretary or said violation has been otherwise legally disposed of by written authority.
Source: SL 1949, ch 85, § 14; SDC Supp 1960, § 22.1714; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-39. Seizure and condemnation of fertilizer in violation--Disposal--Release to claimant.
Any lot of commercial fertilizer not in compliance with the provisions of this chapter shall be subject to seizure and condemnation on complaint of the secretary of agriculture and natural resources to a court of competent jurisdiction in the area in which said commercial fertilizer is located. In the event the court finds the said commercial fertilizer to be in violation of this chapter and orders the condemnation of said commercial fertilizer it shall be disposed of in any manner consistent with the quality of the commercial fertilizer and the laws of this state; provided, that in no instance shall the disposition of said commercial fertilizer be ordered by the court without first giving the claimant an opportunity to apply to the court for the release of said commercial fertilizer or for permission to process or relabel said commercial fertilizer to bring it into compliance with this chapter.
Source: SL 1949, ch 85, § 15; SDC Supp 1960, § 22.1715; SL 1966, ch 66, § 6; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-40. Injunction to prevent violations.
The secretary of agriculture and natural resources is hereby authorized to apply for and the court to grant a temporary or permanent injunction restraining any person from violating or continuing to violate any of the provisions of this chapter or any rule or regulation promulgated under the chapter notwithstanding the existence of other remedies at law. Said injunction shall be issued without bond.
Source: SDC Supp 1960, § 22.1715 (1) (e) as added by SL 1966, ch 66, § 6; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-41. Violation of chapter, rule or regulation as misdemeanor.
Any person violating any of the provisions of this chapter or any rule or regulation promulgated hereunder is guilty of a Class 2 misdemeanor.
Source: SL 1919, ch 207, § 5; SDC 1939, § 22.9926; SL 1949, ch 85, § 17; SDC Supp 1960, § 22.9926-1; SDC Supp 1960, § 22.1715 (1) (b) as added by SL 1966, ch 66, § 6; SL 1977, ch 190, § 325.
38-19-43. Discretion in prosecution of minor violations--Warning.
Nothing in this chapter shall be construed as requiring the secretary of agriculture and natural resources or his representative to report for prosecution, or for the institution of seizure proceedings, minor violations of the chapter when he believes that the public interests will be best served by a suitable notice of warning in writing.
Source: SL 1949, ch 85, § 17; SDC Supp 1960, § 22.1717; SDC Supp 1960, § 22.1715 (1) (c) as added by SL 1966, ch 66, § 6; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-45. Severability of provisions.
If any clause, sentence, paragraph, or part of this chapter shall for any reason be judged invalid by any court of competent jurisdiction, such judgment shall not affect, impair, or invalidate the remainder thereof but shall be confined in its operation to the clause, sentence, paragraph, or part thereof directly involved in the controversy in which such judgment shall have been rendered.
Source: SL 1949, ch 85, § 18; SDC Supp 1960, § 22.1718.
38-19-46. Promulgation of rules for transportation, use, application, disposal, or notice of fertilizer application.
The secretary of agriculture and natural resources may promulgate rules pursuant to chapter 1-26 relating to transportation, use, application, disposal, posting of application sites, or notification of the public or other individuals who may be affected by a commercial fertilizer application that has occurred or will occur in the future.
Source: SL 1992, ch 284, § 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-47. Refusal or cancellation of commercial fertilizer distribution license for noncompliance--Opportunity to be heard.
The secretary of agriculture and natural resources may reject the commercial fertilizer distribution license application of any firm not in compliance with the provisions of this chapter and may cancel the commercial fertilizer license of any firm subsequently found not to be in compliance with any provision of this chapter. However, no commercial fertilizer distribution license may be refused or canceled unless the licensee has been given an opportunity to be heard before the secretary and to amend the application in order to comply with the requirements of this chapter.
Source: SL 2001, ch 215, § 17; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-48. Nutrient research and education fund created.
There is hereby created a nutrient research and education fund for the purpose of advancing fertilizer-related, nutrient-related, and water quality-related purposes as provided in § 38-19-49. Any money in the nutrient research and education fund is continuously appropriated to the Agriculture Experiment Station. The state may accept and expend for the purposes of §§ 38-19-48 to 38-19-51, inclusive, funds obtained from appropriations or any other source. Interest earned on money in the fund shall be deposited into the fund. Any money deposited into and distributed from the fund shall be set forth in an informational budget as described in § 4-7-7.2.
Source: SL 2016, ch 201, § 7.
38-19-49. Deposit of inspection fees into nutrient research and education fund --Purposes of disbursements.
From each fee collected pursuant to § 38-19-10, fifty cents shall be deposited into the nutrient research and education fund created in § 38-19-48. The nutrient research and education fund shall be disbursed as follows:
(1) The Agriculture Experiment Station may use an amount not to exceed five percent of the revenue deposited in the fund for administrative expenses necessary to carry out the functions of §§ 38-19-48 to 38-19-51, inclusive;
(2) The balance of the fund shall be used for fertilizer-related, nutrient-related, and water quality-related research and education purposes in conjunction with the Nutrient Research and Education Council; and
(3) Beginning in fiscal year 2020, a minimum of ten percent of the fund shall be used to support water quality projects.
Source: SL 2016, ch 201, § 4.
38-19-50. Nutrient Research and Education Council created--Membership.
The Nutrient Research and Education Council is hereby established. The council shall consist of nine voting members, including three representing the fertilizer industry, two representing grower organizations, one representing the state's largest commodity organization, one representing the specialty fertilizer industry, one representing the certified agronomy association, and one farmer member of the State Conservation Commission. The council shall also include five nonvoting members: two representing environmental organizations, one representing the director of the South Dakota Agricultural Experiment Station, and two representing the secretary of the Department of Agriculture and Natural Resources. The certified agronomy association and any association or organization representing the fertilizer industry, growers, and the environment may submit nominations to the secretary of agriculture and natural resources for their respective members. The secretary shall select from these nominations the members of the council. Members of the council may receive no compensation, but members may be reimbursed for travel and subsistence expense at the rates set pursuant to chapter 3-9. The council shall meet at least twice each year. The council shall be provided with staff assistance from the South Dakota Agricultural Experiment Station. The council retains the respective quasi-judicial, quasi-legislative, advisory, other nonadministrative and special budgetary functions as defined in § 1-32-1 otherwise vested in the council. The council shall exercise those functions independently of the South Dakota Agricultural Experiment Station.
Source: SL 2016, ch 201, § 5; SL 2018, ch 242, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), §§ 14, 67, eff. Apr. 19, 2021; SL 2024, ch 20, § 16.
38-19-51. Duties of Nutrient Research and Education Council.
The Nutrient Research and Education Council established in § 38-19-50, acting in cooperation and conjunction with the South Dakota Agricultural Experiment Station, shall:
(1) Prioritize nutrient research, water quality research, and education proposals and solicit research proposals to generate findings and make recommendations to the council based on the findings;
(2) Evaluate the proposed budget for each research project and make recommendations as necessary;
(3) Arrange for peer review of all research proposals for scientific merit and methods;
(4) Disseminate the findings of all research projects to the appropriate agricultural sector in the manner deemed most effective; and
(5) Cooperate with other programs with similar goals, if practicable.
The council shall publish an annual financial and activities report, including the amount of funds collected and expenditures for nutrient programs.
Source: SL 2016, ch 201, § 6.
38-19A-1
Definition of terms.
38-19A-2
Distribution of adulterated soil amendments prohibited--Adulteration defined.
38-19A-3
Distribution of misbranded soil amendments prohibited--Misbranding defined.
38-19A-4
Registration of soil conditioners required before distribution--Application--Fee--Expiration--Labels and advertising literature submitted.
38-19A-5
Duplicate registration not required if labels do not differ.
38-19A-6
Minimum ingredients required for registration of soil amendments.
38-19A-7
Label required--Contents.
38-19A-8
False or misleading statements, labeling, advertising, or oral claims prohibited.
38-19A-9
Proof required of claims or usefulness and value--Evidence of proof.
38-19A-10
Approval required for listing or guaranteeing of ingredients on labels--Supportive
data--Inspection and analysis--Quantities of ingredients required.
38-19A-11
Annual tonnage statement--Inspection fees.
38-19A-12
Failure to file, false filing, or failure to pay inspection fee as grounds for registration
revocation.
38-19A-13
Inspection and analysis of soil amendments by secretary--Entry upon premises or
carriers.
38-19A-14
Refusal of registration if soil amendment violates chapter or rules--Cancellation for
fraud or deceptive practices--Hearing before revocation.
38-19A-15
Rules and regulations.
38-19A-16
Violation of chapter as misdemeanor.
38-19A-17
Stop sale, use or removal order--Duration--Release of withdrawn soil amendment--Costs and expenses.
38-19A-18
Deposit of fees.
38-19A-19
Analyses of lime or lime sludge compost provided by distributor.
38-19A-1. Definition of terms.
Terms as used in this chapter, unless the context otherwise requires, shall mean:
(1) "Brand," any trademark, product name, or other specific designation under which any individual soil amendment is offered for sale;
(2) "Bulk," nonpackaged form;
(3) "Distributing," importing, consigning, manufacturing, producing, compounding, mixing or blending any soil amendment, or offering for sale, selling, bartering, or otherwise supplying any soil amendment in this state;
(4) "Distributor," any person who distributes any soil amendment in this state;
(5) "Investigational allowance," any allowance for variations inherent in the taking, preparation and analysis of an official sample of a soil amendment;
(6) "Label," any display of all written, printed, or graphic matter upon the immediate container or statement accompanying a soil amendment;
(7) "Labeling," any written, printed, or graphic matter, upon or accompanying any soil amendment, or advertisements, brochures, posters, or television or radio announcements used in promoting the sale of such soil amendment;
(7A) "Manipulated manure," any animal or vegetable manure collected or stored in a manner consistent with practices commonly implemented in agricultural production that has been subjected to practices including composting, mechanical dewatering, or pelletizing or altered in any way to change chemical, physical, or biological characteristics;
(7B) "Microbe," any microbiological organism or mixture of microbiological organisms intended to produce any physical, chemical, biochemical, biological, or other change in the soil;
(8) "Minimum percentage," that percentage of soil amendment ingredient that shall be present in a product before the product may be accepted for registration when distributed in any form or manner;
(9) "Official sample," any sample of a soil amendment taken by the secretary and so designated;
(10) "Percent," percentage by weight;
(11) "Registrant," any person who shall register any soil amendments under the provisions of this chapter;
(12) "Secretary," the secretary of the Department of Agriculture and Natural Resources of the State of South Dakota;
(13) "Soil amending ingredient," any substance which will improve the physical, chemical, or other characteristic of the soil or improve crop production;
(14) "Soil amendment," any substance which is intended to improve the physical, chemical, or other characteristics of the soil or improve crop production, except the following: commercial fertilizer, unmanipulated animal manures, unmanipulated vegetable manures, pesticides, lime or lime sludge produced by a water treatment facility, sewage sludge, as defined in § 38-19-1, and compost as defined in § 38-19-1;
(15) "Soil ingredient form," any ingredient or the chemical compound of an ingredient;
(16) "Ton," two thousand pounds avoirdupois net weight;
(17) "Weight," the weight of that material offered for sale.
Source: SL 1976, ch 244, § 1; SL 1995, ch 324, § 5; SL 2015, ch 203, § 17; SL 2016, ch 200, § 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19A-2. Distribution of adulterated soil amendments prohibited--Adulteration defined.
No person shall distribute an adulterated soil amendment. A soil amendment shall be deemed to be adulterated if it contains any deleterious or harmful agent in sufficient amount to render it injurious to beneficial plant, animal or aquatic life when applied in accordance with directions for use on the label or if it contains unwanted crop or weed seed.
Source: SL 1976, ch 244, § 14.
38-19A-3. Distribution of misbranded soil amendments prohibited--Misbranding defined.
No person shall distribute any misbranded soil amendment. A soil amendment shall be deemed misbranded if its labeling is false or misleading in any particular, or if it is not labeled as required pursuant to the provisions of this chapter and regulations promulgated pursuant to this chapter, or if it does not conform to ingredient form, minimums and investigational allowances in the regulations adopted by the secretary of agriculture and natural resources.
Source: SL 1976, ch 244, § 13; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19A-4. Registration of soil conditioners required before distribution--Application--Fee--Expiration--Labels and advertising literature submitted.
Each separately identified soil conditioner product shall be registered before being distributed in this state. The application for registration shall be submitted to the secretary of agriculture and natural resources on the form furnished or approved by the secretary and shall be accompanied by a fee of twenty-five dollars per product. Upon approval by the secretary, a copy of the registration shall be furnished to the applicant. Each registration shall expire on December thirty-first of the year following the date of issuance. Each registrant shall submit to the secretary a copy of labels and advertising literature with the registration request for each soil amendment.
Source: SL 1976, ch 244, § 7; SL 2001, ch 215, § 18; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19A-5. Duplicate registration not required if labels do not differ.
No distributor shall be required to register any brand of soil amendment which shall have already been registered under this chapter by another person; provided, however, that the label does not differ in any respect.
Source: SL 1976, ch 244, § 8.
38-19A-6. Minimum ingredients required for registration of soil amendments.
The secretary of agriculture and natural resources may establish rules pursuant to chapter 1-26 to set the minimum amount of any soil amending ingredient that shall be present before a soil amendment can be registered and sold.
Source: SL 1976, ch 244, § 9; SL 1986, ch 326, § 35; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19A-7. Label required--Contents.
A label, in a readable and conspicuous form, shall appear on the face or display side of any soil amendment and shall consist of:
(1) Net weight;
(2) Brand name;
(3) Analysis, including any soil amending ingredient and other ingredients and the percentage of each. In lieu of a guarantee expressed as a percentage, a product that claims the presence of a microbe or microbes shall guarantee the microbe or microbes as follows:
(a) Minimum number of each claimed viable organism at the genus and species level in colony forming units (CFU), spores, or propagules per gram or milliliter (cm3);
(b) Expiration date; and
(c) Storage and handling instructions;
(4) Purpose of the product;
(5) Directions for application; and
(6) Name and address of the registrant.
The secretary of agriculture and natural resources may establish rules, pursuant to chapter 1-26, to allow labeling by volume rather than weight pursuant to subdivision (1) of this section.
Source: SL 1976, ch 244, §§ 2, 6; SL 1986, ch 326, § 36; SL 2015, ch 203, § 18; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19A-8. False or misleading statements, labeling, advertising, or oral claims prohibited.
No information or statement shall appear on any package, label, delivery slip, or advertising matter nor shall any oral claim be made which is false or misleading to the purchaser as to the use, value, quality, analysis, type, or composition of the soil amendment.
Source: SL 1976, ch 244, § 3.
38-19A-9. Proof required of claims or usefulness and value--Evidence of proof.
The secretary of agriculture and natural resources may require proof of claims made for any soil amendment. If no claim is made, he may, nevertheless, require proof of usefulness and value as a soil amendment. For evidence of proof the secretary may rely on experimental data, evaluations, or advice supplied from the agricultural experiment station. The experimental results shall be applicable to such regional conditions as to which the product is intended. The secretary may accept other sources of proof as additional evidence in evaluating soil amendments.
Source: SL 1976, ch 244, § 4; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19A-10. Approval required for listing or guaranteeing of ingredients on labels--Supportive data--Inspection and analysis--Quantities of ingredients required.
No soil amending ingredient may be listed or guaranteed on the labels or labeling of any soil amendment without the approval of the secretary of agriculture and natural resources. The secretary may allow any soil amending ingredient to be listed or guaranteed on the label or labeling if satisfactory supportive data is provided the secretary to substantiate the value and usefulness of the soil amending ingredients. The secretary may rely on the agricultural experiment station for assistance in evaluating the data submitted. If any soil amending ingredient is permitted to be listed or guaranteed, it shall be determinable by laboratory methods and shall be subject to inspection and analysis of the soil amending ingredient. The secretary may stipulate by rules established pursuant to chapter 1-26 the quantities of the soil amending ingredients required in soil amendments.
Source: SL 1976, ch 244, § 5; SL 1986, ch 326, § 37; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19A-11. Annual tonnage statement--Inspection fees.
Every distributor shall file with the secretary, on forms furnished by the secretary of agriculture and natural resources, an annual statement for the period ending December thirty-first of each year setting forth the number of net tons of each soil amendment distributed in the state during that period. The report shall be due within thirty-one days following each annual reporting period. If the report is not filed and the payment of the inspection fee is not made within the time period specified, a collection fee amounting to ten percent of the amount shall be assessed against the registrant. However, the minimum collection fee is ten dollars. The secretary may examine such records to verify statements of tonnage. The statement shall be accompanied by payment of an inspection fee of twenty cents per ton for all soil amendments distributed in this state. The secretary may allow payment of inspection fees on a calculated equivalent of volume to tons.
Source: SL 1976, ch 244, §§ 6, 10; SL 2001, ch 215, § 19; SL 2015, ch 203, § 19; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19A-12. Failure to file, false filing, or failure to pay inspection fee as grounds for registration revocation.
If the report is not filed or is filed falsely or the inspection fee is not paid within thirty days following each semiannual reporting period, the secretary of agriculture and natural resources may revoke the registration.
Source: SL 1976, ch 244, § 11; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19A-13. Inspection and analysis of soil amendments by secretary--Entry upon premises or carriers.
The secretary of agriculture and natural resources shall sample, inspect, make analyses of, and test soil amendments distributed within the state at any time and place and to such an extent as he may deem necessary to determine whether such soil amendments are in compliance with the provisions of this chapter. The secretary may enter upon any public or private premises or carriers during regular business hours in order to have access to soil amendments subject to the provisions of this chapter and the rules and regulations pertaining thereto and to the records relating to their distribution.
Source: SL 1976, ch 244, § 12; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19A-14. Refusal of registration if soil amendment violates chapter or rules--Cancellation for fraud or deceptive practices--Hearing before revocation.
The secretary of agriculture and natural resources may refuse registration of any brand of soil amendment if he shall find the brand of soil amendment violates any section of this chapter or the rules and regulations promulgated pursuant to this chapter. The secretary may cancel the registration of any brand of soil amendment upon satisfactory evidence that the registrant has used fraudulent or deceptive practices to evade the provisions of this chapter, or any rules or regulations promulgated thereunder. However, no registration shall be revoked until the registrant shall have been given the opportunity to appear for a hearing.
Source: SL 1976, ch 244, § 15; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19A-15. Rules and regulations.
The secretary of agriculture and natural resources may, pursuant to chapter 1-26, adopt rules concerning:
(1) The establishment of minimum amounts of soil amending ingredients that shall be present before a soil amendment can be registered and sold;
(2) The allowance of labeling by volume rather than weight; and
(3) Labeling, inspection, sampling, analysis, and distribution of soil amendment products.
Source: SL 1976, ch 244, § 18; SL 1986, ch 326, § 38; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19A-16. Violation of chapter as misdemeanor.
Any person violating any provisions of this chapter is guilty of a Class 2 misdemeanor.
Source: SL 1976, ch 244, § 17; SL 1977, ch 190, § 326.
38-19A-17. Stop sale, use or removal order--Duration--Release of withdrawn soil amendment--Costs and expenses.
The secretary of agriculture and natural resources may issue and enforce a written or printed "stop sale, use or removal" order to the owner or custodian of any lot of soil amendment and to hold at a designated place when the secretary finds such soil amendment is being offered or exposed for sale in violation of any of the provisions of this chapter until the law has been complied with and such soil amendment is released in writing by the secretary, or such violation has been otherwise legally disposed of by written authority. The secretary shall release the soil amendment so withdrawn when the requirements of the provisions of this chapter have been complied with and all costs and expenses incurred in connection with the withdrawal have been paid.
Source: SL 1976, ch 244, § 16; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19A-18. Deposit of fees.
Fees collected under this chapter shall be deposited in the fertilizer fund established pursuant to § 38-19-14.
Source: SL 1993, ch 304, § 5.
38-19A-19. Analyses of lime or lime sludge compost provided by distributor.
Any distributor of lime or lime sludge, compost as defined in § 38-19-1, or sewage sludge, as defined in § 38-19-1, shall make available, upon request, the analyses of any product to the Department of Agriculture and Natural Resources and the end user of the product.
Source: SL 1995, ch 324, § 6; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
CHAPTER 38-20
PEST CONTROL ACTIVITIES
38-20-1 Acceptance of federal acts--Suppression or control of predator and unprotected birds and animals--Secretary of agriculture and natural resources as state agency--Cooperation with Bureau of Sport Fisheries and Wildlife.
38-20-2 Rodent control agreements with Fish and Wildlife Service--Employment of assistance--Purchase of supplies and equipment.
38-20-3 38-20-3 to 38-20-5. Repealed by SL 2006, ch 2, §§ 26 to 28.
38-20-4 38-20-4. Repealed by SL 2006, ch 2, § 27.
38-20-5 38-20-5. Repealed by SL 2006, ch 2, § 28.
38-20-6 38-20-6 to 38-20-31. Repealed by SL 1983, ch 282, § 50
38-20-32 Acceptance of contributions for grasshopper control--Agreement with federal government.
38-20-33 Deposit of contributions in grasshopper control fund--Use of fund.
38-20-34 Grasshoppers--Control and destruction--Agreements by department.
38-20-35 Major grasshopper infestation and emergency--Declaration by Governor--Availability of funds.
38-20-1. Acceptance of federal acts--Suppression or control of predator and unprotected birds and animals--Secretary of agriculture and natural resources as state agency--Cooperation with Bureau of Sport Fisheries and Wildlife.
The State of South Dakota hereby accepts the benefits of the provisions of that part of section 426, title 7, U.S.C., providing for cooperation of the United States through its Fish and Wildlife Service of the United States Department of the Interior, with the various states, individuals, public and private agencies, organizations and institutions, for the suppression and control of unprotected birds and nongame animals which are injurious to agriculture, horticulture and forestry. This state's cooperative program will also include repelling and suppression of unprotected birds and nongame animals that are injurious to stored or growing food products and to the public health. The secretary of agriculture and natural resources of this state is hereby designated as the state agency for this state, for the purpose of administering the provisions of §§ 38-20-1 and 38-20-2, and the said secretary is authorized to cooperate with the Bureau of Sport Fisheries and Wildlife of the United States Department of the Interior in the furtherance of such unprotected birds and nongame animal damage control activities.
Source: SL 1941, ch 6, § 1; SDC Supp 1960, § 4.0107; SL 1971, ch 223, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-20-2. Rodent control agreements with Fish and Wildlife Service--Employment of assistance--Purchase of supplies and equipment.
The secretary of agriculture and natural resources is authorized to make and enter into such cooperative agreements with the proper authorities of the United States Fish and Wildlife Service to accomplish the purposes of §§ 38-20-1 and 38-20-2, and he is hereby authorized, in cooperation with the said Fish and Wildlife Service to employ such assistance and purchase such supplies and equipment as he may deem necessary to carry out the purposes of said sections. Any supplies and equipment so purchased shall be exempt from the provisions of the law relating to the purchasing and printing functions of the Bureau of Human Resources and Administration of this state.
Source: SL 1941, ch 6, § 2; SDC Supp 1960, § 4.0108; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
38-20-32. Acceptance of contributions for grasshopper control--Agreement with federal government.
The secretary of agriculture and natural resources is hereby authorized to accept and receive donations and contributions of money from any source for the purpose of establishing a fund to be matched with available federal funds and to be used for the purpose of grasshopper eradication and controlling grasshopper infestation and for the purpose may enter into all necessary agreements with the United States of America on behalf of the State of South Dakota.
Source: SL 1951, ch 3, § 1; SDC Supp 1960, § 4.0104-1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-20-33. Deposit of contributions in grasshopper control fund--Use of fund.
Funds received under § 38-20-32 together with the available federal funds shall by the secretary of agriculture and natural resources be deposited with the state treasurer in the fund to be designated as grasshopper control fund, and which fund shall be paid out on warrants of the state auditor on vouchers duly approved by the secretary.
Source: SL 1951, ch 3, § 2; SDC Supp 1960, § 4.0104-1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-20-34. Grasshoppers--Control and destruction--Agreements by department.
The Department of Agriculture and Natural Resources is authorized to enter into agreements with the United States Department of Agriculture, other state and federal agencies, and with local grasshopper control committees to promote the control and destruction of grasshoppers. The department is also authorized to enter into a cost-sharing program with these agencies and committees if funds are made available pursuant to chapter 4-8A or other funds available to the Department of Agriculture and Natural Resources. The state share may not exceed one-third of the costs of these programs.
Source: SL 1979, ch 265, § 3; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-20-35. Major grasshopper infestation and emergency--Declaration by Governor--Availability of funds.
The Governor may declare a major grasshopper infestation and an emergency from major infestation in areas where landowners and lessees have formed a grasshopper control committee and have entered into an agreement with the State Department of Agriculture and Natural Resources. Upon the declaration of emergency, funds from the general contingency fund, as created by chapter 4-8A, may be made available, pursuant to approval granted by chapter 4-8A or other funds available to the Department of Agriculture and Natural Resources, for grasshopper control.
Source: SL 1979, ch 265, §§ 1, 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
CHAPTER 38-20A
PESTICIDES
38-20A-1 Definitions.
38-20A-2 Repealed.
38-20A-3 Declaration as pest--Public hearing.
38-20A-4 Pesticides--Sale or distribution--Registration--Contents--Fees--Cancellation.
38-20A-5 38-20A-5. Repealed by SL 1983, ch 281, § 3
38-20A-6 Interplant shipments--Exception from registration.
38-20A-7 38-20A-7. Repealed by SL 1998, ch 247, § 3
38-20A-8 Registration--Requirements--Submission contents.
38-20A-9 38-20A-9, 38-20A-9.1. Repealed by 1998, ch 247, §§ 4, 5
38-20A-10 Registration of pesticide by secretary.
38-20A-11 Registration not a defense.
38-20A-12 Notice to registrant--Failure to comply--Refusal of registration--Hearing.
38-20A-13 Cancellation of registration--Hearing.
38-20A-14 38-20A-14. Repealed by SL 1983, ch 281, § 9
38-20A-15 Information regarding pesticide formulas--Prohibitions--Violations as misdemeanors--Exceptions.
38-20A-16 Adulterated pesticides.
38-20A-17 38-20A-17. Repealed by SL 1983, ch 281, § 11
38-20A-17.1 Misbranded pesticides.
38-20A-18 38-20A-18. Repealed by SL 1983, ch 281, § 12
38-20A-18.1 Misbranded device.
38-20A-19 38-20A-19 to 38-20A-24. Repealed by SL 1983, ch 281, §§ 13 to 18
38-20A-25 Repealed.
38-20A-26 Sale or distribution of adulterated or misbranded article prohibited.
38-20A-27 Unregistered pesticides--Prohibitions--Change in labeling or formula.
38-20A-28 Authorized container--Requirements--Prohibitions.
38-20A-29 Label required--Contents of label.
38-20A-30 38-20A-30. Repealed by SL 1983, ch 281, § 26
38-20A-31 Exemption for carriers--Access to records.
38-20A-32 State and federal officials exempt from penalties.
38-20A-33 38-20A-33. Repealed by SL 1983, ch 281, § 29
38-20A-34 Alteration or destruction of label as petty offense--Changing composition of substance.
38-20A-35 Exemption of pesticide packed for export--Provisions applicable if not exported.
38-20A-36 Promulgation of rules.
38-20A-37 Cooperation with other state and federal agencies.
38-20A-38 Repealed.
38-20A-39 Inspection and sampling--Access to premises and records--Identification and examination of samples.
38-20A-40 38-20A-40. Repealed by SL 1983, ch 281, § 33
38-20A-41 Stop-sale order on pesticide or device in violation--Attachment to pesticide--Notice--Effect of order.
38-20A-42 38-20A-42 to 38-20A-45. Repealed by SL 1983, ch 281, §§ 35 to 38
38-20A-46 Stop-sale--Payment of costs.
38-20A-47 Prohibited contracts void--Action on contract prohibited.
38-20A-48 38-20A-48.Violation of chapter--Penalties.
38-20A-49 38-20A-49.Notice of contemplated criminal proceedings--Opportunity to present views--Referral to state's attorney.
38-20A-50 38-20A-50.Minor violations--Written warning.
38-20A-50.1 38-20A-50.1.Voluntary compliance--Administrative settlement agreements.
38-20A-51 Repealed.
38-20A-52 Repealed.
38-20A-53 Repealed.
38-20A-54 Waste pesticide--Development of program--Promulgation of rules.
38-20A-55 Repealed.
38-20A-56 Creation of pesticide recycling and disposal fund--Interest--Appropriation.
38-20A-57 Acceptance of donations.
38-20A-58 Establishment of public lands weed and pest fund--Interest--Expenditures.
38-20A-59 Registration fees--Distribution.
38-20A-1. Definitions.
Terms used in this chapter mean:
(1) "Active ingredient," any ingredient which prevents, destroys, repels, or mitigates insects, fungi, rodents, weeds, or other pests;
(2) "Antidote," the most practical immediate treatment in case of poisoning, including first-aid treatment;
(3) "Bulk pesticide," any volume of a pesticide which is transported or held in an immediate reusable container in undivided quantities greater than one hundred pounds net dry weight or fifty-five U.S. gallons liquid measure. This does not include pesticides which are in the custody of the ultimate user and are fully prepared for use by the user;
(4) "Device," any instrument or contrivance intended for trapping, destroying, repelling, or mitigating insects or for destroying, repelling, or mitigating fungi, weeds, rodents, or any other pests designated by the secretary, but not including equipment used for the application of pesticides when sold separately and not including rodent traps;
(5) "Fungi," all nonchlorophyll-bearing thallophytes of a lower order than mosses and liverworts, for example, rusts, smuts, mildews, molds, yeasts, and bacteria, except those on or in living persons or other animals;
(6) "Fungicide," any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any fungi;
(7) "Herbicide," any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any weed;
(8) "Inert ingredient," an ingredient which is not an active ingredient;
(9) "Ingredient statement," a statement of the name and percentage of each active ingredient, together with the total percentage of the inert ingredients, in a pesticide. In the case of every pesticide containing arsenic in any form, the ingredient statement shall show, in addition to other required information, the percentages of total arsenic and of water-soluble arsenic, each expressed in terms of elemental arsenic;
(10) "Insect," any of the numerous small invertebrate animals belonging to the class insecta and to other allied classes of arthropods;
(11) "Insecticide," any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any insects which may be present in any environment;
(12) "Label," the written, printed, or graphic matter on, or attached to, the pesticide or device, or the immediate container and the outside container or wrapper of the retail package;
(13) "Labeling," all labels and other written, printed, or graphic matter:
(a) On the pesticide or device or any of its containers or wrappers;
(b) Accompanying the pesticide or device at any time; or
(c) To which reference is made on the label or in literature accompanying the pesticide or device, except accurate, nonmisleading reference to current official publications of any government institution or official agency of the United States or of this or any other state, authorized by law to conduct research in the field of pesticides;
(14) "Pest," any insect, rodent, nematode, fungus, weed, or other form of terrestrial or aquatic plant or animal life or virus, bacteria, or other microorganism, except viruses, bacteria, or other microorganisms on or in living persons or other living animals, which the secretary declares to be a pest;
(15) "Pesticide," any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pests, or any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant or any substance or mixture of substances intended to be used as a spray adjuvant;
(16) "Registrant," the person registering any pesticide pursuant to the provisions of this chapter;
(17) "Rodenticide," any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating rodents or any other vertebrate animal which the secretary declares to be a pest;
(18) "Secretary," the secretary of the Department of Agriculture and Natural Resources;
(19) "Waste pesticide," any pesticide formulation that cannot be used according to label directions because of cancellation or suspension of its federal registration or deterioration of the product or its label, and any pesticide formulation whose active ingredients are not clearly identifiable because the pesticide is not stored in its original container; and
(20) "Weed," any plant which grows where not wanted.
Source: SL 1943, ch 88, § 1; SL 1947, ch 99, § 2; SL 1955, ch 69; SDC Supp 1960, § 22.12A02; SDCL, § 39-19-1; SL 1983, ch 281, § 1; SL 1986, ch 332, § 2; SL 1992, ch 282, § 3; SL 2020, ch 173, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-20A-2. Repealed.
Source: SL 1947, ch 99, § 11; SDC Supp 1960, § 22.12A10; SDCL, § 39-19-2; SL 2020, ch 173, § 2.
38-20A-3. Declaration as pest--Public hearing.
The secretary is authorized, after holding a public hearing, to declare as a pest any form of plant or animal life or virus which is injurious to any plant, person, domestic animal, or substance.
Source: SL 1947, ch 99, § 6; SDC Supp 1960, § 22.12A06 (1) (a); SDCL, § 39-19-3; SL 1985, ch 15, § 51; SL 2020, ch 173, § 3.
38-20A-4. Pesticides--Sale or distribution--Registration--Contents--Fees--Cancellation.
Before any person whose name or brand name appears on a pesticide may distribute, sell, or offer for sale or distribution in this state any pesticide, the person shall file with the secretary a registration of the pesticide. Each registration shall include the following:
(1) The name and address of the registrant and the name and address of the person whose name will appear on the label, if other than the registrant;
(2) The name of the pesticide;
(3) One complete copy of the labeling accompanying the pesticide and a statement of all claims to be made for the pesticide, including directions for use;
(4) If requested by the secretary, efficacy, toxicity, residue, and any other data necessary to determine if the pesticide will perform its intended function without unreasonable adverse effects on the environment;
(5) The classification or lack of classification and general use or restricted use of the pesticide; and
(6) An annual registration fee of one hundred sixty-five dollars.
Each registration is valid for one year and expires on June thirtieth. The registration may not be transferred. A fee equal to fifty percent of the registration fee shall be applied to any late renewal. Each pesticide registration fee is nonrefundable.
If a pesticide is no longer available for use due to a cancellation or suspension order of the United States Environmental Protection Agency, it is not subject to registration requirements. If the holder of a pesticide registration cancels the registration, the pesticide shall be discontinued within two years. During the discontinuance period, the annual registration fee shall be paid.
Source: SL 1947, ch 99, § 5; SDC Supp 1960, § 22.12A05 (1); SDCL § 39-19-4; SL 1983, ch 281, § 2; SL 1998, ch 247, § 1; SL 2008, ch 208, § 1, eff. Mar. 13, 2008; SL 2018, ch 243, § 1; SL 2020, ch 175, § 1.
38-20A-6. Interplant shipments--Exception from registration.
Notwithstanding any other provision of this chapter, registration is not required if a pesticide is shipped from one manufacturing plant within this state to another manufacturing plant within this state operated by the same person, and the pesticide is not sold or offered for sale in this state.
Source: SL 1947, ch 99, § 5; SDC Supp 1960, § 22.12A05 (5); SDCL, § 39-19-6; SL 2020, ch 173, § 4.
38-20A-8. Registration--Requirements--Submission contents.
The registrant shall submit to the secretary the complete formula of any pesticide, including the formula's active ingredients. The secretary may also require the registrant to submit the inert ingredients upon request.
Source: SL 1947, ch 99, § 5; SDC Supp 1960, § 22.12A05 (3); SDCL, § 39-19-8; SL 1983, ch 281, § 5; SL 2020, ch 173, § 5.
38-20A-10. Registration of pesticide by secretary.
If it appears to the secretary that the composition of the pesticide warrants the proposed claims for it, and if the pesticide, labeling, and other material required to be submitted meet the requirements in §§ 38-20A-16 to 38-20A-29, inclusive, the secretary shall register the pesticide.
Source: SL 1947, ch 99, § 5; SDC Supp 1960, § 22.12A05 (2), (3); SDCL, § 39-19-10; SL 1998, ch 247, § 6; SL 2020, ch 173, § 6.
38-20A-11. Registration not a defense.
In no event may registration of a pesticide be construed as a defense for the commission of any offense prohibited under the provisions of §§ 38-20A-26 to 38-20A-29, inclusive.
Source: SL 1947, ch 99, § 5; SDC Supp 1960, § 22.12A05 (4); SDCL, § 39-19-11; SL 1983, ch 281, § 6; SL 2020, ch 173, § 7.
38-20A-12. Notice to registrant--Failure to comply--Refusal of registration--Hearing.
If it does not appear to the secretary that the pesticide warrants the proposed claims for it or if the pesticide labeling and other material required to be submitted do not comply with the provisions of this chapter or the rules promulgated thereunder, the secretary shall notify the registrant of the reasons the pesticide, labeling, or other material fails to comply with the provisions of this chapter to provide the registrant an opportunity to make the necessary corrections. If, upon receipt of the notice, the registrant does not make the necessary corrections, the secretary may refuse to register the pesticide. If the secretary refuses to register the pesticide, the registrant may request a hearing under the provisions of chapter 1-26.
Source: SL 1947, ch 99, § 5; SDC Supp 1960, § 22.12A05 (4); SDCL, § 39-19-12; SL 1983, ch 281, § 7; SL 2020, ch 173, § 8.
38-20A-13. Cancellation of registration--Hearing.
If the secretary determines that a registered pesticide or its labeling does not comply with the provisions of this chapter or rules promulgated under this chapter, the secretary may cancel the registration of that pesticide, subject to a hearing under the provisions of chapter 1-26.
Source: SL 1947, ch 99, § 5; SDC Supp 1960, § 22.12A05 (4); SDCL, § 39-19-13; SL 1983, ch 281, § 8; SL 2020, ch 173, § 9.
38-20A-15.Information regarding pesticide formulas--Prohibitions--Violations as misdemeanors--Exceptions.
It is a Class 1 misdemeanor for any person to use for the person's own advantage, or to reveal any information relative to formulas of products acquired in accordance with §§ 38-20A-4 to 38-20A-13, inclusive. Notwithstanding the provisions of § 38-20A-48, it is a Class 2 misdemeanor for any person to use or reveal information relative to formulas of products acquired in accordance with §§ 38-20A-4 to 38-20A-13, inclusive, with the intent to defraud.
This section does not apply to information revealed to the secretary, or to any official or employee of this state, or to the courts of this state in response to a subpoena, or, in an emergency, to physicians, pharmacists, and other qualified persons for use in the preparation of antidotes.
Source: SL 1947, ch 99, §§ 4, 9; SDC Supp 1960, §§ 22.12A04 (2) (b), 22.9931; SDCL, § 39-19-15; SL 1977, ch 190, § 416; SL 1992, ch 158, § 100; SL 2020, ch 174, § 1.
38-20A-16. Adulterated pesticides.
A pesticide is adulterated if its strength or purity does not meet the professed standard or quality, as expressed on its labeling or under which it is sold, or if any substance has been substituted wholly or in part for the pesticide, or if any valuable ingredient of the pesticide has been wholly or in part abstracted.
Source: SL 1943, ch 88, § 3; SL 1947, ch 99, § 3; SDC Supp 1960, § 22.12A03 (1); SDCL, § 39-19-16; SL 1983, ch 281, § 10; SL 2020, ch 173, § 10.
38-20A-17.1. Misbranded pesticides.
A pesticide is misbranded if:
(1) The label bears any statement, design, or graphic representation relative to the pesticide or its ingredients which is false or misleading;
(2) It is an imitation of or is offered for sale under the name of another pesticide;
(3) The label bears any reference to registration under the provisions of this chapter;
(4) The label does not contain necessary instructions for use which are adequate, if complied with, for the protection of the public;
(5) The label does not bear a necessary warning or caution statement which is adequate, if complied with, to prevent injury to living persons or other vertebrate animals;
(6) The label does not bear an ingredient statement on the immediate container and on the outside container or wrapper, if one exists through which the ingredient statement on the immediate container cannot be clearly read, of the retail package which is presented or displayed under customary conditions of purchase;
(7) The label fails to clearly and plainly show the name and address of the manufacturer, registrant, or person for whom the pesticide is manufactured; the name, brand, or trademark under which the pesticide is registered and sold; and the net weight or measure of the contents of the container, subject, however, to any reasonable variations as the secretary of agriculture and natural resources may permit by regulation;
(8) Any word, statement, or other information required by the provisions of this chapter that appears on the labeling is not prominently placed on the labeling in a conspicuous manner, when compared with other words, statements, designs, or graphic material on the labeling, and in terms that render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use; or
(9) The pesticide is injurious to living persons or other vertebrate animals, or to vegetation, except weeds or pests, to which it is applied, or to the person applying the pesticide, when used as directed or in accordance with commonly recognized practices.
Source: SL 1983, ch 281, § 19; SL 2020, ch 173, § 11; SL 2021, ch 1 (Ex. Ord. 21-3), § 14, eff. Apr. 19, 2021.
38-20A-18.1. Misbranded device.
A device is misbranded if its labeling bears any statement, design, or graphic representation relative to the device which is false or misleading.
Source: SL 1983, ch 281, § 20; SL 2020, ch 173, § 12.
38-20A-25. Repealed.
Source: SL 1947, ch 99, § 3; SDC Supp 1960, § 22.12A03 (3) (g); SDCL, § 39-19-25; SL 1983, ch 281, § 21; SL 2020, ch 173, § 13.
38-20A-26. Sale or distribution of adulterated or misbranded article prohibited.
No person may knowingly or willfully distribute, sell, or offer for sale within this state any pesticide which is adulterated or misbranded, or any device which is misbranded.
Source: SL 1947, ch 99, § 4; SDC Supp 1960, § 22.12A04 (1) (e); SDCL, § 39-19-26; SL 1977, ch 190, § 417; SL 1983, ch 281, § 22.
38-20A-27. Unregistered pesticides--Prohibitions--Change in labeling or formula.
No person may knowingly or willfully distribute, sell, or offer for sale within this state any pesticide which is not registered under the provisions of §§ 38-20A-4 to 38-20A-13, inclusive; or any pesticide if any of the claims made or any of the directions for the pesticide's use differ in substance from the representations made in connection with its registration; or any pesticide if the composition of the pesticide differs from the composition represented in its registration. The secretary may allow a change in the labeling or formula of a pesticide within a registration period without requiring reregistration of the pesticide.
Source: SL 1947, ch 99, §§ 4, 9; SDC Supp 1960, §§ 22.12A04 (1) (a), 22.9929; SDCL, § 39-19-27; SL 1977, ch 190, § 418; SL 1983, ch 281, § 23; SL 2020, ch 173, § 14.
38-20A-28. Authorized container--Requirements--Prohibitions.
No person may knowingly or willfully distribute, sell, or offer for sale within this state any pesticide unless it is in the registrant's or the manufacturer's unbroken immediate container and there is affixed to the container, and to the outside container or wrapper if one exists through which the ingredient statement on the immediate container cannot be clearly read, a label bearing clearly and plainly the information required in this chapter.
Source: SL 1947, ch 99, § 4; SDC Supp 1960, § 22.12A04 (1) (b); SDCL, § 39-19-28; SL 1977, ch 190, § 419; SL 1983, ch 281, § 24; SL 2020, ch 173, § 15.
38-20A-29. Label required--Contents of label.
No person may distribute, sell, or offer for sale within this state any pesticide which contains any substance in quantities highly toxic to persons, unless, in addition to any other information required by this chapter, the label bears the following:
(1) A skull and crossbones and the word "poison," both prominently printed in red figure and letters not less than one-fourth inch high on a background of distinctly contrasting color; and
(2) A statement of an antidote for the pesticide.
Source: SL 1947, ch 99, §§ 4, 6; SDC Supp 1960, §§ 22.12A04 (1) (c), 22.12A06 (1) (b); SDCL, § 39-19-29; SL 1977, ch 190, § 420; SL 1983, ch 281, § 25; SL 2020, ch 173, § 16.
38-20A-31. Exemption for carriers--Access to records.
The provisions of §§ 38-20A-26 to 38-20A-29, inclusive, do not apply to a carrier while lawfully engaged in transporting a pesticide within this state if the carrier, upon request, permits the secretary to copy all records showing transactions in and movement of the pesticides.
Source: SL 1947, ch 99, § 8; SDC Supp 1960, § 22.12A08 (1) (a); SDCL, § 39-19-31; SL 1983, ch 281, § 27; SL 2020, ch 173, § 17.
38-20A-32. State and federal officials exempt from penalties.
The provisions of §§ 38-20A-26 to 38-20A-29, inclusive, do not apply to public officials of this state or the federal government when engaged in the performance of official duties.
Source: SL 1947, ch 99, § 8; SDC Supp 1960, § 22.12A08 (1) (b); SDCL, § 39-19-32; SL 1983, ch 281, § 28; SL 2020, ch 173, § 18.
38-20A-34. Alteration or destruction of label as petty offense--Changing composition of substance.
It is a petty offense for any person to detach, alter, deface, or destroy, in whole or in part, any label provided for in this chapter or rules promulgated thereunder, or to add any substance to, or take any substance from, a pesticide in a manner that does not comply with any of the provisions of this chapter.
Source: SL 1947, ch 99, § 4; SDC Supp 1960, § 22.12A04 (2) (a); SDCL, § 39-19-34; SL 1977, ch 190, § 422; SL 2020, ch 173, § 19.
38-20A-35. Exemption of pesticide packed for export--Provisions applicable if not exported.
No pesticide is in violation of this chapter when intended solely for export to a foreign country, and when prepared or packed according to the specifications or directions of the purchaser. If the pesticide is not exported, all the provisions of the chapter apply.
Source: SL 1947, ch 99, § 8; SDC Supp 1960, § 22.12A08 (2); SDCL, § 39-19-35; SL 2020, ch 173, § 20.
38-20A-36. Promulgation of rules.
The secretary may promulgate rules, pursuant to chapter 1-26, providing for registration, sampling, analysis, inspection, storage, handling, and labeling of pesticides, bulk pesticides, or devices. The secretary may also promulgate rules, pursuant to chapter 1-26, applicable to and in conformity with the primary standards established by this chapter that have been or may be prescribed by the United States Department of Agriculture, United States Environmental Protection Agency, or other federal agency with respect to pesticides.
Source: SL 1947, ch 99, § 6; SL 1949, ch 86; SDC Supp 1960, § 22.12A06 (2); SDCL, § 39-19-36; SL 1983, ch 281, § 30; SL 1986, ch 27, § 45; SL 1986, ch 326, § 39; SL 2020, ch 173, § 21.
38-20A-37. Cooperation with other state and federal agencies.
The secretary is authorized and empowered to cooperate with, and enter into agreements with, any other agency of this state, the United States Department of Agriculture, the United States Environmental Protection Agency, and any other state or agency thereof for the purpose of carrying out the provisions of this chapter and securing uniformity of regulations.
Source: SL 1947, ch 99, § 12; SDC Supp 1960, § 22.12A11; SDCL, § 39-19-37; SL 2020, ch 173, § 22.
38-20A-38. Repealed.
Source: SL 1947, ch 99, § 6; SDC Supp 1960, § 22.12A06 (3); SDCL, § 39-19-38; SL 1983, ch 281, § 31; SL 1986, ch 326, § 40; SL 2020, ch 173, § 23.
38-20A-39. Inspection and sampling--Access to premises and records--Identification and examination of samples.
The secretary may inspect and sample pesticides and devices kept or offered for sale, sold, or distributed within this state at the time and place and to the extent necessary to confirm compliance with the provisions of this chapter. The secretary has all the rights of visitation, inspection, sampling, and access to places, property, containers, and records as necessary to enforce the provisions of this chapter. All samples collected shall be sealed and properly identified in the presence of the dealer or person from whom taken and shall be promptly examined.
Source: SL 1949, ch 86; SDC Supp 1960, § 22.12A06 (2); SDCL, § 39-19-39; SL 1983, ch 281, § 32; SL 2020, ch 173, § 24.
38-20A-41. Stop-sale order on pesticide or device in violation--Attachment to pesticide--Notice--Effect of order.
If the secretary has reasonable cause to believe a pesticide or a device is being distributed, sold, or offered for sale within this state in a manner inconsistent with any of the provisions of this chapter, or of any of the rules adopted under this chapter, the secretary may issue and serve a written "stop-sale" order upon the owner or custodian of the pesticide or device. If the owner or custodian is not available for service of the order, the order may be attached to the pesticide or device and the secretary shall notify the owner or custodian and the registrant. The pesticide or device may not be sold or used, and the stop-sale order may not be removed until the pesticide or device meets the provisions of this chapter and is released by written order under conditions specified by the secretary or the violation is otherwise rectified as provided in this chapter.
Source: SL 1977, ch 318; SL 1983, ch 281, § 34; SL 2020, ch 173, § 25.
38-20A-46. Stop-sale--Payment of costs.
Upon payment to the department of all costs incurred by the department to implement the stop-sale and sufficient assurance that a pesticide or device subject to a "stop-sale" order pursuant to the provisions of § 38-20A-41 will not be disposed of unlawfully, the secretary may direct that the pesticide or device be delivered to its owner for relabeling or reprocessing.
Source: SL 1947, ch 99, § 10; SDC Supp 1960, § 22.12A09 (2); SDCL, § 39-19-45; SL 1983, ch 281, § 39; SL 2020, ch 173, § 26.
38-20A-47. Prohibited contracts void--Action on contract prohibited.
Any contract for the sale of a pesticide or device in violation of the provisions of this chapter is void. No action may be maintained in any court for the purchase price or value of any pesticide or device, the sale of which is prohibited. No person is liable for the price or value of any pesticide or device furnished in violation of any of the provisions of this chapter.
Source: SL 1917, ch 242, § 22; RC 1919, § 7803; SDC 1939, § 22.0106; SDCL, § 39-1-7; SL 1983, ch 281, § 40; SL 2020, ch 173, § 28.
38-20A-48.Violation of chapter--Penalties.
Any person violating any provision of this chapter which is not otherwise classified is guilty of a Class 2 misdemeanor, or may be subject to a civil penalty not to exceed five thousand dollars per violation, or both. A civil penalty under this section shall be imposed by the circuit court. Any civil penalty collected shall be deposited into the state general fund.
Source: SL 1947, ch 99, § 9; SDC Supp 1960, § 22.9930; SDCL, § 39-19-46; SL 1977, ch 190, § 423; SL 1983, ch 281, § 43; SL 2020, ch 174, § 2.
38-20A-49.Notice of contemplated criminal proceedings--Opportunity to present views--Referral to state's attorney.
If it appears from an examination under § 38-20A-39 that a pesticide or device fails to comply with this chapter, and the secretary contemplates a referral to the state's attorney to institute criminal proceedings against a person, the secretary shall notify that person. A person so notified may present the person's views within thirty days of receiving notice, either orally or in writing, with regard to the contemplated proceedings. If, in the opinion of the secretary, it appears that this chapter has been violated, the secretary shall refer the facts to the state's attorney for the county in which the violation occurred with a copy of the results of the analysis or the examination of the pesticide or device.
Source: SL 1947, ch 99, § 7; SDC Supp 1960, § 22.12A07 (1); SDCL, § 39-19-48; SL 1983, ch 281, § 41; SL 2020, ch 174, § 3.
38-20A-50.Minor violations--Written warning.
Nothing in this chapter requires the secretary to refer for prosecution or for institution of other proceedings minor violations of this chapter whenever the secretary believes that the public interests will be best served by a written warning.
Source: SL 1947, ch 99, § 7; SDC Supp 1960, § 22.12A07 (1); SDCL, § 39-19-49; SL 1983, ch 281, § 42; SL 2020, ch 174, § 4.
38-20A-50.1.Voluntary compliance--Administrative settlement agreements.
Nothing in this chapter prevents the department from obtaining voluntary compliance with this chapter through a conference, settlement, or any other appropriate means. The secretary may enter into an administrative settlement agreement regarding any violation of this chapter, including stipulated settlements of any civil penalty authorized under this title.
Source: SL 2020, ch 174, § 5.
38-20A-51. Repealed.
Source: SL 1947, ch 99, § 7; SDC Supp 1960, § 22.12A07 (2); SDCL, § 39-19-50; SL 2020, ch 173, § 27.
38-20A-52. Repealed.
Source: SL 1947, ch 99, § 7; SDC Supp 1960, § 22.12A07 (3); SDCL, § 39-19-51; SL 2020, ch 173, § 29.
38-20A-53. Repealed.
Source: SL 1947, ch 99, § 1; SDC Supp 1960, § 22.12A01; SDCL, § 39-19-52; SL 2020, ch 173, § 30.
38-20A-54. Waste pesticide--Development of program--Promulgation of rules.
For the purposes of developing a waste pesticide collection and disposal program and a pesticide container recycling program, the secretary may promulgate rules pursuant to chapter 1-26 to:
(1) Enter into agreements with private entities and cooperate with other local, state, or federal agencies to fulfill the goals of the program;
(2) Define the types and condition of pesticide containers to be accepted through the recycling program;
(3) Define the kind and condition of pesticides to be accepted through the waste pesticide collection and disposal program;
(4) Establish procedures for collecting waste pesticides for disposal and pesticide containers for recycling; and
(5) Develop criteria for establishing pesticide and pesticide container collection sites.
Source: SL 1992, ch 282, § 1; SL 1995, ch 232; SL 2020, ch 173, § 31.
38-20A-55. Repealed.
Source: SL 1992, ch 282, § 4; SL 2008, ch 208, § 2, eff. Mar. 13, 2008; SL 2020, ch 173, § 32.
38-20A-56. Creation of pesticide recycling and disposal fund--Interest--Appropriation.
Moneys obtained pursuant to §§ 38-20A-54 to 38-20A-57, inclusive, shall be deposited into the pesticide recycling and disposal fund, which is hereby created within the state treasury. Interest accrued on moneys contained in the fund shall be deposited to the fund. All moneys in the pesticide recycling and disposal fund are continuously appropriated to the Department of Agriculture and Natural Resources to carry out the provisions of §§ 38-20A-54 to 38-20A-57, inclusive.
Source: SL 1992, ch 282, § 5; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-20A-57. Acceptance of donations.
For the purposes of §§ 38-20A-54 to 38-20A-57, inclusive, the secretary may accept donations of funds, property, services, or other assistance from public or private sources.
Source: SL 1992, ch 282, § 6.
38-20A-58. Establishment of public lands weed and pest fund--Interest--Expenditures.
There is hereby established within the state treasury the public lands weed and pest fund. Interest accrued on money in the fund shall be deposited to the fund. All money in the public lands weed and pest fund shall be budgeted and expended in accordance with Title 4 by the Department of School and Public Lands for weed and pest control on school and public lands and meandered lake lands. At the end of each fiscal year, any unobligated cash in the public lands weed and pest fund in excess of three hundred thousand dollars shall revert to the weed and pest fund created in § 38-22-35.
Source: SL 1993, ch 305, § 2; SL 1998, ch 247, § 7.
38-20A-59. Registration fees--Distribution.
The annual registration fee for each pesticide registered in § 38-20A-4 shall be distributed as follows:
(1) Forty-five dollars shall be deposited in the pesticide regulatory fund created in § 38-21-57;
(2) Thirty-three dollars and seventy-five cents shall be deposited in the weed and pest fund created in § 38-22-35;
(3) Twenty-one dollars and twenty-five cents shall be deposited in the public lands weed and pest fund created in § 38-20A-58;
(4) Fifteen dollars shall be deposited within the agricultural experiment station pursuant to chapter 13-58;
(5) Ten dollars shall be deposited within the cooperative extension service pursuant to chapter 13-54; and
(6) Forty dollars shall be deposited in the pesticide recycling and disposal fund created in § 38-20A-56.
The late renewal fee in § 38-20A-4 shall be divided equally among the weed and pest fund created in § 38-22-35, the pesticide regulatory fund created in § 38-21-57, and the public lands weed and pest fund created in § 38-20A-58.
Source: SL 1998, ch 247, § 2; SL 2008, ch 208, § 3, eff. Mar. 13, 2008; SL 2018, ch 243, § 2; SL 2020, ch 175, § 2.
CHAPTER 38-21
AGRICULTURAL PESTICIDE APPLICATION
38-21-1 38-21-1 to 38-21-13. Repealed by SL 1974, ch 255, § 35.
38-21-14 Definitions.
38-21-14.1 38-21-14.1. Repealed by SL 2015, ch 204, § 24.
38-21-15 Repealed.
38-21-15.1 Bulk pesticide storage facility permit--Revocation of permit--Penalty.
38-21-15.2 Operation without permit--Civil penalty, injunctive, or declaratory relief.
38-21-15.3 Existing bulk pesticide storage--Alteration--Plans prepared--Rules prohibited.
38-21-15.4 Bulk pesticide storage facility--Promulgation of rules.
38-21-16 Pesticide incidents--Report of damage--Inspection by secretary.
38-21-17 Commercial applicator license--Annual fee--Violation as misdemeanor--Civil penalty.
38-21-17.1 Commercial applicator's license--Expiration.
38-21-18 Standards for certification of applicators--Promulgation of rules.
38-21-19 38-21-19. Repealed by SL 1976, ch 245, § 6.
38-21-20 Qualified applicants--Issuance of license--Denial of application.
38-21-21 Licensure--Denial or non-issuance--Written explanation.
38-21-22 Applicator's license--Restrictions.
38-21-23 Private applicator's license--Requirement--Fee--Promulgation of rules--Penalty for violation.
38-21-23.1 Private applicator's license--Expiration.
38-21-24 Private and commercial applicators--Records--Promulgation of rules.
38-21-25 38-21-25. Repealed by SL 1976, ch 245, § 6.
38-21-26 Repealed.
38-21-27 38-21-27 to 38-21-32. Repealed by SL 1991, ch 326, §§ 6 to 11.
38-21-33 Classes of certifications and licenses.
38-21-33.1 Pesticide dealer--Unlicensed operation--Misdemeanor--Civil penalty.
38-21-33.2 Physicians, veterinarians, and pharmacists--Exemption.
38-21-33.3 Pesticide applicators and government agencies--Exemption.
38-21-33.4 License required for outlets--Transitory locations prohibited.
38-21-33.5 Pesticide dealer's license--Fee--Form of application.
38-21-33.6 Denial, suspension, or revocation of dealer's license--Hearing.
38-21-33.7 38-21-33.7. Repealed by SL 1986, ch 332, § 7.
38-21-33.8 Pesticide dealer--Exemption.
38-21-33.9 Pesticide dealer's license--Expiration.
38-21-34 Applicator's license--Limitations.
38-21-35 Veterinarians --Exemption.
38-21-36 Research applications under laboratory conditions exempt.
38-21-37 Application without compensation--Exemption.
38-21-38 Repealed.
38-21-39 Restricted-use pesticide classifications--Promulgation of rules.
38-21-39.1 Unlicensed sale of restricted-use pesticide--Misdemeanor--Civil penalty.
38-21-39.2 Sale of restricted-use pesticide to unlicensed person--Misdemeanor--Civil penalty.
38-21-39.3 Unlicensed buying of restricted-use pesticide--Misdemeanor--Civil penalty.
38-21-40 Restricted-use pesticides--Licensure required--Restrictions--Criteria--Penalty.
38-21-41 Reciprocal waiver of examinations.
38-21-42 Renewal of license--Requirements--Exceptions.
38-21-43 Repealed.
38-21-44 Licensure action--Penalty.
38-21-44.1 Contemplated criminal proceedings--Notice--Opportunity to present views--Referral to state's attorney.
38-21-44.2 Obtaining voluntary compliance--Administrative settlement agreements.
38-21-45 Pesticide damage--Liability.
38-21-46 Notice of damage--Requirements--Exception.
38-21-47 Inspection of damages--Requirements.
38-21-48 Repealed.
38-21-49 Pesticide incident--Failure to report.
38-21-50 38-21-50. Repealed by SL 1987, ch 287, § 9.
38-21-50.1 Repealed.
38-21-50.2 Damages to injured person.
38-21-51 Administration and enforcement of chapter--Promulgation of rules.
38-21-52 Cooperation with other agencies.
38-21-53 Entry and inspection by secretary.
38-21-54 Repealed.
38-21-55 Cause of action--Injunction.
38-21-56 Notification of pesticide application--Promulgation of rules.
38-21-57 Pesticide regulatory fund--Administration and uses--Expenditures.
38-21-58 Application of pesticide--Licensed commercial applicator--Personal property.
38-21-14. Definitions.
Terms used in this chapter mean:
(1) "Animals," all vertebrate and invertebrate species, including humans;
(2) "Bulk pesticide," any volume of a pesticide, which is transported or held in an immediate reusable container, in undivided quantities greater than one hundred pounds net dry weight or fifty-five United States gallons liquid measure, but not including pesticides that are in the custody of the ultimate user and are fully prepared for use by the user;
(3) "Bulk pesticide storage facility," any area, location, tract of land, building, structure, or premises, constructed in accordance with rules promulgated by the secretary, pursuant to chapter 1-26, for the storage of bulk pesticides;
(4) "Certified applicator," any individual certified under this chapter to use any pesticide;
(5) "Commercial applicator," a certified applicator, eighteen years of age or older, who uses pesticide, on any property, other than as a private applicator;
(6) "Defoliant," any substance or mixture of substances intended to cause the leaves or foliage of a plant to drop, with or without causing abscission;
(7) "Desiccant," any substance or mixture of substances intended to artificially accelerate the drying of plant tissue;
(8) "Device," any instrument or contrivance intended for trapping, destroying, repelling, or mitigating insects, or for destroying, repelling, or mitigating fungi, weeds, rodents, or any other pests designated by the secretary, but not including:
(a) Equipment used for the application of pesticides, if sold separately; and
(b) Rodent traps;
(9) "Environment," water, air, land, and all plants and animals living therein, and the interrelationships that exist among them;
(10) "Equipment," any ground, water, or aerial equipment, or any device that uses motorized, mechanical, or pressurized power to apply pesticide, but not including a pressurized, hand-sized, household device that requires the person applying the pesticide to be the source of power or energy to make the pesticide application;
(11) "Fungus," any nonchlorophyll-bearing thallophyte, except those on or in processed food, beverages, or pharmaceuticals, or those on or in living animals;
(12) "Insect," any small invertebrate animal belonging to the class insecta or to other allied classes of arthropods;
(13) "Labeling," any written, printed, or graphic matter:
(a) That is on the pesticide or device, or on any of its containers or wrappers;
(b) That accompanies the pesticide or device, at any time; or
(c) To which reference is made in literature that accompanies the pesticide or device, except for accurate, nonmisleading references to current publications of any government institution or agency of the United States, or of this or any other state, authorized by law to conduct research in the field of pesticides;
(14) "Land," all land and water areas, including airspace, and all plants, animals, structures, buildings, contrivances, and machinery, appurtenant thereto or situated thereon, fixed or mobile, including any used for transportation;
(15) "Pesticide dealer," a person who distributes:
(a) A restricted-use pesticide;
(b) A pesticide that is restricted in use or distribution, by regulation; or
(c) A pesticide that is to be applied to agricultural land and is provided in a container larger than one hundred gallons;
(16) "Nematode," any invertebrate animal of the phylum ne-mathel-minthes or nematoda;
(17) "Pest," any insect, rodent, nematode, fungus, weed, or other form of terrestrial or aquatic plant or animal life or virus, bacteria, or other microorganism, except viruses, bacteria, or other microorganisms on or in a living human or other living animal, which the secretary declares to be a pest;
(18) "Pesticide," any substance or mixture of substances intended to:
(a) Prevent, destroy, repel, or mitigate any pest;
(b) Be used as a plant regulator, defoliant, or desiccant; or
(c) Be used as a spray adjuvant;
(19) "Plant regulator," any substance or mixture of substances, intended, through physiological action, to accelerate or retard the rate of growth or rate of maturation, or for otherwise altering the behavior of ornamental or crop plants, or the produce thereof, but not including substances to the extent they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants, or soil amendments;
(20) "Private applicator," a certified applicator, eighteen years of age or older, who:
(a) Uses any pesticide, other than a restricted-use pesticide, for purposes of producing any agricultural commodity amounting to greater than one thousand dollars gross sales potential per year, on property owned or rented by the private applicator or the private applicator's employer;
(b) Uses any restricted-use pesticide for the purpose of producing any agricultural commodity on property owned or rented by the private applicator or the private applicator's employer;
(c) Applies any pesticide on the property of another, without compensation, other than the trading of personal services between producers of agricultural commodities; or
(d) Is not regularly in the business of applying pesticides for hire, as a principal or regular occupation, and is not held out to the public as a commercial applicator;
(21) "Registrant," the person registering any pesticide in accordance with this chapter;
(22) "Restricted-use pesticide," any pesticide classified as a restricted-use pesticide by the secretary;
(23) "Rinsate," any solution containing pesticide residue, which is generated from the washing or flushing of pesticide containers and pesticide equipment;
(24) "Secretary," the secretary of the Department of Agriculture and Natural Resources;
(25) "Spray adjuvant," any wetting agent, spreading agent, sticker, deposit builder, adhesive, emulsifying agent, deflocculating agent, water modifier, or similar agent, intended to be used with any other pesticide as an aid to the application or to the effect thereof, and which is in a package or container separate from that of the pesticide with which it is to be used;
(26) "Unreasonable adverse effects on the environment," any unreasonable risk to humans or the environment, taking into account the economic, social and environmental costs and benefits of the use of any pesticide; and
(27) "Weed," any plant that grows where it is not wanted.
Source: SL 1974, ch 255, § 1; SL 1975, ch 251, §§ 1, 3; SL 1976, ch 245, §§ 1, 2; SL 1985, ch 312, § 1; SL 1985, ch 377, § 2; SL 1986, ch 332, § 1; SL 1988, ch 316, § 1; SL 1991, ch 326, § 1; SL 1992, ch 283, § 1; SL 2011, ch 189, § 1; SL 2015, ch 203, § 20; SL 2020, ch 174, § 6; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021; SL 2023, ch 145, § 1; SL 2023, ch 146, § 1.
38-21-15. Repealed.
Source: SL 1974, ch 255, § 29; SL 1986, ch 326, § 41; SL 1987, ch 287, § 1; SL 1991, ch 326, § 2; SL 2020, ch 174, § 7.
38-21-15.1. Bulk pesticide storage facility permit--Revocation of permit--Penalty.
No person may establish or operate a bulk pesticide storage facility without obtaining a bulk pesticide storage facility permit from the secretary. If a bulk pesticide storage facility is operating in violation of the permit requirements established in rules promulgated under this chapter, the secretary may grant a reasonable period of time for the facility to comply with the rules. If the facility does not comply with the rules in the prescribed period of time, the secretary shall revoke the operating permit pursuant to chapter 1-26. A violation of this section is a Class 1 misdemeanor.
Source: SL 1986, ch 332, § 3; SL 2020, ch 173, § 33.
38-21-15.2. Operation without permit--Civil penalty, injunctive, or declaratory relief.
Notwithstanding any other provision of this chapter, any person who operates a bulk storage facility without a permit or violates the bulk pesticide storage facility permit provision of this chapter is subject to a civil penalty not to exceed five hundred dollars for each day of violation. In addition, the secretary may enforce the provisions of this chapter by means of injunctive and declaratory relief in circuit court.
Source: SL 1986, ch 332, § 4; SL 2020, ch 173, § 34.
38-21-15.3. Existing bulk pesticide storage--Alteration--Plans prepared--Rules prohibited.
The secretary may not promulgate a rule requiring that plans, specifications, and supporting information submitted for an alteration of an existing bulk pesticide storage facility or the construction of a new site be prepared by a registered professional engineer. Nothing in this section prohibits an operator of a bulk pesticide storage facility from voluntarily having the plans, specifications, and supporting information prepared by a registered professional engineer.
Source: SL 1986, ch 332, § 11; SL 2020, ch 173, § 35.
38-21-15.4 . Bulk pesticide storage facility--Promulgation of rules.
The secretary may promulgate rules, pursuant to chapter 1-26 , providing for a bulk pesticide storage facility permit system and operational requirements necessary for secondary containment of bulk pesticide for the protection of the environment and human health. The secretary may require that appropriate plans and specifications for construction and operation of a bulk pesticide storage facility be submitted for approval prior to the issuance, modification, suspension, or revocation of a permit.
Source: SL 2020, ch 173, § 36.
38-21-16. Pesticide incidents--Report of damage--Inspection by secretary.
Any person may report damage from the use of a pesticide or any alleged pesticide incident to the secretary on a form provided by the secretary, with a written statement, within thirty days after the date the damage was observed or the incident occurred. Any person alleging damage shall permit the secretary to inspect, during reasonable hours, the lands where the alleged damage or incident occurred, or any organism is alleged to have been damaged.
Source: SL 1974, ch 255, § 19; SL 1986, ch 326, § 42; SL 2020, ch 174, § 8.
38-21-17. Commercial applicator license--Annual fee--Violation as misdemeanor--Civil penalty.
No person may perform any of the following acts without a commercial applicator's license issued by the secretary, unless exempt under the provisions of this chapter:
(1) Engage in the business of applying pesticides to the lands of another;
(2) Advertise as being in the business of applying pesticides to the lands of another at any time;
(3) Apply pesticides while in the performance of duties as a governmental employee; or
(4) Otherwise act as a commercial applicator.
The secretary shall require a fee of thirty-five dollars for each commercial applicator license issued. A violation of this section is a Class 2 misdemeanor. In addition to any criminal penalty, any person who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation imposed by the circuit court. Any civil penalty collected shall be deposited into the state general fund.
Source: SL 1951, ch 112, § 1; SL 1951, ch 113, § 1; SL 1953, ch 93, § 2; SDC Supp 1960, § 22.12B01 (1), (3); SDCL, §§ 38-21-1, 38-21-2; SL 1974, ch 255, § 8; SL 1987, ch 287, § 2; SL 1991, ch 326, § 3; SL 2001, ch 215, § 20; SL 2020, ch 175, § 3.
38-21-17.1. Commercial applicator's license--Expiration.
A commercial applicator's license expires on March thirty-first of the second year following the year of issuance, unless the license is revoked before the expiration, by the secretary, as provided for in § 38-21-44.
Source: SL 2020, ch 175, § 4; SL 2023, ch 145, § 2.
38-21-18. Standards for certification of applicators--Promulgation of rules.
The secretary may promulgate rules, pursuant to chapter 1-26, to prescribe standards for the certification of all applicators of pesticides. The standards shall relate to the use and handling of pesticides, or to the use and handling of the pesticide or class of pesticides covered by the individual's certification, and shall relate to the hazards involved. In determining these standards, the secretary shall consider the standards of the federal Environmental Protection Agency.
Source: SL 1974, ch 255, § 6; SL 1986, ch 326, § 43; SL 2020, ch 173, § 37.
38-21-20. Qualified applicants--Issuance of license--Denial of application.
If the secretary finds the applicant qualified to apply pesticides in the classifications for which the applicant applied, after such examinations as the secretary shall require by regulation, and if the applicant applying for a license to engage in aerial application of pesticides has met all the requirements of the Federal Aviation Agency, the Aeronautics Commission of this state, and any other applicable federal or state laws or regulations to operate the equipment described in the application, the secretary shall issue an applicator's license limited to the classifications for which the applicant is qualified. The secretary may deny any application for any applicator's license if the secretary finds that the applicant has violated any provisions of this chapter.
Source: SL 1974, ch 255, § 9; SL 1976, ch 245, § 3; SL 2020, ch 173, § 38.
38-21-21. Licensure--Denial or non-issuance--Written explanation.
If any applicator's license is denied or not issued as applied for, the secretary shall inform the applicant in writing of the reasons for the denial or non-issuance.
Source: SL 1974, ch 255, § 9; SL 2020, ch 173, § 39.
38-21-22. Applicator's license--Restrictions.
The secretary may limit the license of any applicant to the use of certain pesticides, or to certain areas, or to certain types of equipment based upon the applicant's qualifications.
Source: SL 1974, ch 255, § 9; SL 2020, ch 173, § 40.
38-21-23. Private applicator's license--Requirement--Fee--Promulgation of rules--Penalty for violation.
No private applicator may use any pesticide without a license and without first complying with the certification requirements determined by the secretary as necessary to prevent unreasonable adverse effects on the environment, including injury to the applicator or other persons, for that specific pesticide use. The secretary may require a license fee, to be established in rules promulgated pursuant to chapter 1-26 not to exceed twenty-five dollars. Any person who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation imposed by the circuit court. Any civil penalty collected shall be deposited into the state general fund.
Source: SL 1974, ch 255, § 13; SL 1986, ch 326, § 44; SL 1987, ch 287, § 3; SL 1991, ch 326, § 4; SL 2020, ch 175, § 5.
38-21-23.1. Private applicator's license--Expiration.
A private applicator's license expires on March thirty-first of the third year following the year of issuance, unless the license is revoked before the expiration, by the secretary, as provided for in § 37-21-44.
Source: SL 2020, ch 175, § 6; SL 2023, ch 145, § 3.
38-21-24. Private and commercial applicators--Records--Promulgation of rules.
The secretary may promulgate rules, pursuant to chapter 1-26, to require private and commercial applicators to maintain any pesticide application records the secretary determines are necessary.
Source: SL 1974, ch 255, § 23; SL 1986, ch 326, § 45; SL 1991, ch 326, § 5; SL 2020, ch 173, § 41.
38-21-26. Repealed.
Source: SL 1953, ch 93, § 2; SL 1955, ch 73; SDC Supp 1960, § 22.12B05; SDCL, § 38-21-9; SL 1974, ch 255, § 9; SL 1977, ch 309, § 1; SL 1986, ch 332, § 5; SL 2001, ch 215, § 21; SL 2020, ch 175, § 7.
38-21-33. Classes of certifications and licenses.
The secretary may further classify or subclassify certifications to be issued under this chapter. The classifications may include soil fumigation, nonsoil fumigation, pest control operators, ornamental or agricultural pesticide applicators, and right-of-way pesticide applicators. Separate classifications may be specified as to ground, aerial, or manual methods used by any licensee to apply pesticides or to the use of pesticides to control insects and plant diseases, rodents or weeds. Each classification shall be subject to separate testing procedures and requirements.
Source: SL 1974, ch 255, § 4; SL 2020, ch 174, § 9.
38-21-33.1. Pesticide dealer--Unlicensed operation--Misdemeanor--Civil penalty.
No person may act as a pesticide dealer or advertise as a pesticide dealer at any time without first obtaining a pesticide dealer's license issued by the secretary. A violation of this section is a Class 2 misdemeanor. In addition to any criminal penalty, any person who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation. Any civil penalty under this section shall be imposed by the circuit court. Any civil penalty collected shall be deposited into the state general fund.
Source: SL 1975, ch 251, § 4; SL 1977, ch 190, § 328; SL 1987, ch 287, § 5; SL 2001, ch 215, § 22; SL 2020, ch 173, § 42.
38-21-33.2. Physicians, veterinarians, and pharmacists--Exemption.
Any licensed physician, veterinarian, or pharmacist is exempt from the provisions of § 38-21-33.1 if less than three percent of total sales is derived from the sale of pesticides.
Source: SL 1975, ch 251, § 4; SL 2020, ch 173, § 43.
38-21-33.3. Pesticide applicators and government agencies--Exemption.
The provisions of § 38-21-33.1 do not apply to any commercial pesticide applicator who sells pesticides only as an integral part of an application service if the pesticides are dispensed only through equipment used for pesticide application, or any federal, state, county, or municipal agency that provides pesticides only for the agency's own programs.
Source: SL 1975, ch 251, § 6; SL 1977, ch 309, § 2; SL 2020, ch 173, § 44.
38-21-33.4. License required for outlets--Transitory locations prohibited.
A pesticide dealer's license is required for each location or outlet located within this state from which pesticides are distributed. A manufacturer, registrant, or distributor who has no location licensed within this state, but who distributes pesticides directly into this state shall obtain a pesticide dealer license for the principal out-of-state location or outlet of the manufacturer, registrant, or distributor. A licensed location may not be transitory.
Source: SL 1975, ch 251, § 4; SL 2020, ch 173, § 45.
38-21-33.5. Pesticide dealer's license--Fee--Form of application.
An application for a pesticide dealer's license shall be accompanied by a seventy-five dollar license fee and shall be on a form prescribed by the secretary.
Source: SL 1975, ch 251, § 5; SL 2001, ch 215, § 23; SL 2020, ch 175, § 8.
38-21-33.6. Denial, suspension, or revocation of dealer's license--Hearing.
A pesticide dealer's license is subject to denial, suspension, or revocation after a hearing, pursuant to chapter 1-26, for any violation of this chapter if the violation was committed by the dealer, or by the dealer's officer, agent, or employee.
Source: SL 1975, ch 251, § 8; SL 2020, ch 173, § 46.
38-21-33.8. Pesticide dealer--Exemption.
Any person holding a pesticide dealer's license pursuant to § 38-21-33.1 is exempt from purchasing a poison license for any pesticide listed as a poison under chapter 34-20 and from maintaining a poison register as required in §§ 34-20-4 and 34-20-5.
Source: SL 1986, ch 282; SL 2020, ch 173, § 47.
38-21-33.9. Pesticide dealer's license--Expiration.
A pesticide dealer's license expires on March thirty-first of the second year following the year of issuance, unless the license is revoked before the expiration, by the secretary, as provided for in § 38-21-44.
Source: SL 2020, ch 175, § 9; SL 2023, ch 145, § 4.
38-21-34. Applicator's license--Limitations.
No applicator may hold more than one applicator's license simultaneously. Any private applicator's license held by a commercial applicator shall become invalid upon issuance of a commercial applicator's license by the secretary.
Source: SL 1955, ch 73; SDC Supp 1960, § 22.12B05; SDCL, § 38-21-10; SL 1974, ch 255, § 5; SL 2020, ch 174, § 10.
38-21-35. Veterinarians --Exemption.
The licensing requirements of this chapter do not apply to a licensed veterinarian applying pesticides other than restricted-use pesticides to animals during the normal course of the veterinarian's practice if the veterinarian is not principally or regularly engaged in the business of applying pesticides and is not publicly identified as a pesticide applicator.
Source: SL 1974, ch 255, § 27; SL 2020, ch 173, § 48.
38-21-36. Research applications under laboratory conditions exempt.
The licensing requirements of this chapter shall not apply to research personnel applying pesticides under laboratory conditions.
Source: SL 1974, ch 255, § 28; SL 1976, ch 245, § 5.
38-21-37. Application without compensation--Exemption.
The licensing requirements of this chapter do not apply to any person using hand-powered equipment to apply pesticides, other than restricted-use pesticides, to lawns, or to ornamental shrubs and trees not in excess of twelve feet high, if applied without compensation.
Source: SL 1974, ch 255, § 26; SL 1991, ch 326, § 12; SL 2020, ch 173, § 49.
38-21-39. Restricted-use pesticide classifications--Promulgation of rules.
For the purpose of uniformity and in order to enter into cooperative agreements, the secretary may promulgate rules, pursuant to chapter 1-26, adopting restricted-use pesticides classifications as determined by the federal Environmental Protection Agency, to determine state restricted-use pesticides, to restrict the use of certain pesticides, or to disallow the use of certain pesticides within the state or within designated areas of the state.
Source: SL 1974, ch 255, § 3; SL 1986, ch 326, § 47; SL 1991, ch 326, § 14; SL 2020, ch 173, § 50.
38-21-39.1. Unlicensed sale of restricted-use pesticide--Misdemeanor--Civil penalty.
No person without a pesticide dealer's license issued by the secretary under the provisions of this chapter may sell any restricted-use pesticide to any person. A violation of this section is a Class 2 misdemeanor. In addition to any criminal penalty, any person who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation. Any civil penalty under this section shall be imposed by the circuit court. Any civil penalty collected shall be deposited into the state general fund.
Source: SL 1975, ch 251, § 9; SL 1977, ch 190, § 329; SL 1987, ch 287, § 6; SL 1988, ch 316, § 2; SL 1991, ch 326, § 15; SL 2020, ch 173, § 51.
38-21-39.2. Sale of restricted-use pesticide to unlicensed person--Misdemeanor--Civil penalty.
No pesticide dealer may sell a restricted-use pesticide to any person who is not licensed under this chapter. A violation of this section is a Class 2 misdemeanor. In addition to any criminal penalty, any person who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation. Any civil penalty under this section shall be imposed by the circuit court. Any civil penalty collected shall be deposited into the state general fund. Any pesticide dealer is responsible for acts committed by the pesticide dealer's officers, agents, or employees under the civil penalty provisions of this section.
Source: SL 1988, ch 316, § 3; SL 2020, ch 173, § 52.
38-21-39.3. Unlicensed buying of restricted-use pesticide--Misdemeanor--Civil penalty.
No person without a license issued under this chapter may buy any restricted-use pesticide. A violation of this section is a Class 2 misdemeanor. In addition to any criminal penalty, any person who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation. Any civil penalty under this section shall be imposed by the circuit court. Any civil penalty collected shall be deposited into the state general fund.
Source: SL 1988, ch 316, § 4; SL 1991, ch 326, § 16; SL 2020, ch 173, § 53.
38-21-40. Restricted-use pesticides--Licensure required--Restrictions--Criteria--Penalty.
No person may use any restricted-use pesticide without that person first complying with the licensing requirements of this chapter and any other restrictions as may be determined by the secretary, pursuant to § 38-21-39, as necessary to prevent unreasonable adverse effects on the environment, including injury to the applicator or other persons, for that specific pesticide use. In determining restrictions, the secretary shall, pursuant to § 38-21-39, consider the characteristics of the pesticide formulation such as the acute dermal inhalation toxicity; the persistence, mobility, and susceptibility to biological concentration; the use experience which may reflect an inherent misuse of an unexpected good safety record which does not always follow laboratory toxicological information; the relative hazards of patterns of use such as granular soil applications, ultra-low volume or dust aerial applications, or air blast sprayer applications; and the extent of the intended use. Any person who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation. Any civil penalty under this section shall be imposed by the circuit court. Any civil penalty collected shall be deposited into the state general fund.
Source: SL 1974, ch 255, § 7; SL 1987, ch 287, § 7; SL 2020, ch 174, § 12.
38-21-41. Reciprocal waiver of examinations.
The secretary may waive any examination requirement under any provision of this chapter on a reciprocal basis with any other state which has substantially the same standards.
Source: SL 1974, ch 255, § 24; SL 2020, ch 173, § 54.
38-21-42. Renewal of license--Requirements--Exceptions.
Any person holding a current valid license may renew the license for the next biennium without taking another examination unless the secretary determines that additional knowledge related to classifications for which the applicant has applied makes a new examination necessary or if additional demonstration of qualifications is determined necessary for a person who has had a license suspended or revoked or has had one or more previous violations of this chapter. Any person whose license has expired and has not been renewed in accordance with this chapter before the expiration, shall be required to take the examination to obtain a new license.
Source: SL 1974, ch 255, § 15; SL 1986, ch 332, § 8; SL 1988, ch 316, § 5; SL 2001, ch 215, § 24; SL 2020, ch 174, § 13.
38-21-43. Repealed.
Source: SL 1974, ch 255, § 15; SL 1986, ch 332, § 9; SL 2001, ch 215, § 25; SL 2020, ch 175, § 10.
38-21-44. Licensure action--Penalty.
The secretary, pending examination and after notice and opportunity for a hearing, pursuant to chapter 1-26, may suspend, revoke, deny, or modify any provision of any license issued under this chapter and held by the violator, if the secretary finds that the holder or applicant has committed any of the following acts, each of which is declared to be a violation of this chapter:
(1) Made false or fraudulent claims through any media, misrepresenting the effect of materials or methods to be utilized;
(2) Made a pesticide recommendation or application inconsistent with the labeling, or mixed, loaded, stored, transported, disposed, displayed, or handled a pesticide or pesticide container inconsistent with the product label or labeling, provided a deviation may include:
(a) The loading and handling of the manufacturer's unbroken immediate container; and
(b) Actions permitted under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136(ee), as amended through January 1, 2023;
(3) Applied known ineffective or improper materials;
(4) Operated faulty or unsafe equipment;
(5) Operated in a faulty, careless, or negligent manner;
(6) Neglected or, after notice, refused to comply with this chapter, rules adopted under this chapter, or any lawful order of the secretary;
(7) Refused or neglected to keep and maintain records required by this chapter, or to make reports as required;
(8) Made false or fraudulent records, invoices, or reports;
(9) Engaged in the business of applying a pesticide on the lands of another, without having a license or certification required by this chapter;
(10) Used fraud or misrepresentation in applying for or renewing a license or certification;
(11) Refused or neglected to comply with any limitations or restrictions listed on an issued license;
(12) Aided or abetted a licensed or an unlicensed person to evade the provisions of this chapter, conspired with such a person to evade the provisions of this chapter, or allowed one's license or certification to be used by another person;
(13) Made false or misleading statements to the secretary or the secretary's agents during an inspection or investigation conducted under this chapter;
(14) Impersonated any federal, state, county, or city inspector or official;
(15) Failed to maintain the aerial requirements, as provided for in § 38-21-20;
(16) Transported, stored, used, disposed of, or handled any pesticide, pesticide container, rinsate, or application equipment in a manner that:
(a) Endangers or causes injury or damage to humans, vegetation, crops, livestock, wildlife, or beneficial insects; or
(b) Pollutes groundwater or surface water; or
(17) Violated agricultural pesticide application laws of any other state or violated federal agricultural pesticide application laws while in any other state.
In addition to the administrative sanctions available to the secretary pursuant to this section, a violation of this section is a Class 2 misdemeanor.
Any person who violates this section is also subject to a civil penalty, not to exceed five thousand dollars per violation. A civil penalty under this section must be imposed by the circuit court.
Any civil penalty collected must be deposited into the state general fund.
The secretary is not required to seek the administrative sanctions available under this section before referring charges or commencing any action against an alleged violator of this section.
Source: SL 1951, ch 113, § 3; SL 1953, ch 93, § 2; SDC Supp 1960, § 22.12B07; SDCL, § 38-21-12; SL 1974, ch 255, § 16; SL 1986, ch 332, § 10; SL 1987, ch 287, § 8; SL 1990, ch 321; SL 1991, ch 326, § 17; SL 2020, ch 174, § 14; SL 2023, ch 145, § 5.
38-21-44.1. Contemplated criminal proceedings--Notice--Opportunity to present views--Referral to state's attorney.
If it appears from an examination pursuant to this chapter that there has been a violation of this chapter, and the secretary contemplates a referral to the state's attorney for criminal proceedings against a person, the secretary shall notify that person in writing. A person so notified may present the person's views within thirty days of receiving notice, either orally or in writing, with regard to the contemplated proceedings. If, in the opinion of the secretary, it appears that this chapter has been violated by the person, the secretary shall refer the facts to the state's attorney for the county in which the violation occurred with a copy of the results of the analysis, the examination of the pesticide or device or any other relevant evidence, and information in the possession of the secretary. This referral by the secretary is not required if it appears to the secretary that the violation is minor, and the secretary believes that the public will be best served by a written warning.
Source: SL 2020, ch 174, § 15.
38-21-44.2.Obtaining voluntary compliance--Administrative settlement agreements.
Nothing in this chapter prevents the department from obtaining voluntary compliance with the provisions of this chapter through a conference, settlement, or any other appropriate means. The secretary may enter into an administrative settlement agreement regarding any violation of the provisions of this chapter including stipulated settlements of any civil penalty or administrative sanction authorized under this title.
Source: SL 2020, ch 174, § 16.
38-21-45.Pesticide damage--Liability.
Nothing in this chapter may be construed to relieve any person from liability for any damage to another caused by the use of pesticides even though the use conforms to the rules promulgated under the authority of this chapter.
Source: SL 1974, ch 255, § 34; SL 2020, ch 174, § 17.
38-21-46.Notice of damage--Requirements--Exception.
Any person claiming damages from any use of a pesticide shall notify by certified mail the pesticide applicator of the alleged damage within the earlier of:
(1) Thirty days after the date that the damages were observed or should have been observed; or
(2) If a growing crop is alleged to have been damaged, before the time that twenty-five percent of the crop has been harvested or destroyed.
This section does not apply if the person seeking reimbursement for damage was the applicator of the pesticide.
Source: SL 1974, ch 255, § 20; SL 1991, ch 326, § 18; SL 2020, ch 174, § 18.
38-21-47.Inspection of damages--Requirements.
Upon notifying the applicator as required under § 38-21-46, the person seeking reimbursement for the alleged damage shall permit the applicator and up to four representatives of the applicator to enter the person's property during reasonable hours for the purpose of observing and examining the alleged damage. If the person fails to allow entry, the person is barred from asserting a claim against the applicator.
Source: SL 1974, ch 255, § 20; SL 2020, ch 174, § 19.
38-21-49. Pesticide incident--Failure to report.
The failure to report an incident in accordance with the provisions of § 38-21-16 is not a violation of this chapter. If the person failing to file a report is the only one injured from the use or application of a pesticide by others, the secretary may, when in the public interest, refuse to hold a hearing for the suspension, modification, or revocation of a license issued under this chapter.
Source: SL 1974, ch 255, § 21; SL 2020, ch 174, § 21.
38-21-50.1. Repealed.
Source: SL 1985, ch 377, § 4; SL 1987, ch 287, § 10; SL 1991, ch 326, § 19; SL 2020, ch 174, § 22.
38-21-50.2. Damages to injured person.
Civil penalties specified in §§ 38-21-15.2, 38-21-17, 38-21-23, 38-21-33.1, 38-21-39.1, 38-21-39.2, 38-21-39.3, 38-21-40, and 38-21-44 do not lessen the damages that may be awarded to any person injured.
Source: SL 1987, ch 287, § 11; SL 1991, ch 326, § 20; SL 2020, ch 174, § 23.
38-21-51. Administration and enforcement of chapter--Promulgation of rules.
The secretary may promulgate rules pursuant to chapter 1-26 providing for:
(1) The inspection of storage and disposal areas;
(2) The inspection of application equipment and equipment storage areas;
(3) The establishment of restricted pesticide uses or methods of distribution;
(4) Standards for the use, transportation, storage, handling, and disposal of pesticides or pesticide containers, rinsate, and application equipment;
(5) The reporting of pesticide accidents and incidents;
(6) Standards for the certification of applicators of pesticides;
(7) Standards for the examination and testing of applicators of pesticides;
(8) The establishment of fees for a private applicator's license not to exceed twenty-five dollars per license;
(9) Pesticide applicator reporting and record keeping requirements;
(10) The establishment of state restricted-use pesticides for designated areas within the state;
(11) Pesticide dealers reporting and record keeping requirements;
(12) The establishment of certification categories and sub-categories;
(13) The classification or sub-classification of licenses; and
(14) The use of pesticides through irrigation systems.
Source: SL 1949, ch 87, § 6; SL 1951, ch 112, § 3; SL 1953, ch 93, § 2; SDC Supp 1960, § 22.12B06; SDCL, § 38-21-11; SL 1974, ch 255, § 2; SL 1986, ch 326, § 48; SL 2020, ch 175, § 11.
38-21-52. Cooperation with other agencies.
The secretary may cooperate, receive grants-in-aid, and enter into agreements with any agency of the federal government, of this state or its subdivisions, or with any agency of another state, to obtain assistance in the implementation of this chapter; to secure uniformity of regulations; to cooperate in the enforcement of the federal pesticide control laws through the use of state or federal personnel and facilities and to implement cooperative enforcement programs; to develop and administer state programs for training and certification of certified applicators consistent with federal standards; to contract for training with other agencies including federal agencies for the purpose of training certified applicators; to contract for monitoring pesticides for the national plan; to prepare and submit state plans to meet federal certification standards and issuance of experimental permits; and to regulate certified applicators.
Source: SL 1974, ch 255, § 14; SL 2020, ch 173, § 55.
38-21-53. Entry and inspection by secretary.
To perform any duty pursuant to the provisions of this chapter, the secretary may enter any public or private premises at any reasonable time to inspect any pesticide-related equipment and the premises on which the equipment is kept or stored, to inspect lands actually or reportedly exposed to pesticides, to inspect storage or disposal areas, to investigate complaints of injury to humans or land, to examine any records required to be maintained pursuant to this chapter, or to sample pesticides being applied or to be applied. The secretary may apply to any court of competent jurisdiction for a search warrant authorizing access to any land or premises to which the secretary may be denied access.
Source: SL 1974, ch 255, § 31; SL 2020, ch 173, § 56.
38-21-55. Cause of action--Injunction.
The secretary may cause an action to commence in any court of competent jurisdiction to enjoin the violation or threatened violation of any provision of this chapter.
Source: SL 1974, ch 255, § 33; SL 2020, ch 173, § 58.
38-21-56. Notification of pesticide application--Promulgation of rules.
The secretary may promulgate rules, pursuant to chapter 1-26, to require posting of pesticide application sites and notifying the public or other individuals who may be affected by a pesticide application that has occurred or will occur in the future.
Source: SL 1992, ch 284, § 1; SL 2020, ch 173, § 59.
38-21-57. Pesticide regulatory fund--Administration and uses--Expenditures.
Funds collected pursuant to §§ 38-21-17, 38-21-23, and 38-21-33.5 shall be deposited in a special revenue fund hereby created in the state treasury known as the pesticide regulatory fund. This fund shall consist of moneys from public and private sources including legislative appropriations, federal grants, gifts, and the fees received pursuant to this chapter. The fund shall be maintained separately and be administered by the department in order to defray the expenses of all activities associated with administering the pesticide program. Expenditures from the fund shall be appropriated through the normal budget process. Unexpended funds and interest shall remain in the fund until appropriated by the Legislature.
Source: SL 1993, ch 304, § 3; SL 2020, ch 173, § 60; SL 2020, ch 175, § 12.
38-21-58. Application of pesticide--Licensed commercial applicator--Personal property.
Any commercial applicator who is licensed pursuant to this chapter to apply pesticides to agricultural land may apply pesticides to property owned by the applicator without a private applicator's license if the commercial categories in which the applicator is licensed are the appropriate applications to be made. Any applicator shall abide by all state and federal rules and regulations pertaining to private applicator pesticide application when applying pesticides on the applicator's own property.
Source: SL 2013, ch 194, § 1; SL 2020, ch 174, § 24.
38-22-1
Superseded.
38-22-1.1
Administration of commission under department supervision--Independent functions
retained by commission.
38-22-1.2
Definitions.
38-22-1.3
State Weed and Pest Control Commission abolished.
38-22-1.4
South Dakota Weed and Pest Control Commission established.
38-22-1.5
Composition of commission.
38-22-1.6
Nomination of appointive members of commission--Areas represented--Length of
terms.
38-22-1.7
Functions of commission.
38-22-1.8
End of current terms--Commencement of new terms--Term limits.
38-22-2, 38-22-3. Obsolete.
38-22-4
Repealed.
38-22-5
Meetings of commission--Election and terms of officers.
38-22-6
Appointment of state weed and pest coordinator.
38-22-7
Formulation of weed and pest program.
38-22-8
Cooperation with other state agencies--Functions of experiment station and extension
service.
38-22-9
Determination and publication of lists of state weeds and pests.
38-22-9.1, 38-22-10. Repealed.
38-22-11
Enforcement of commission rules, regulations, processes, subpoenas, and orders.
38-22-11.1
Promulgation of rules.
38-22-12
Administration of state weed and pest program.
38-22-13
Moving agricultural machinery without cleaning as misdemeanor.
38-22-14
Repealed.
38-22-15
Repealed.
38-22-16
Infested land declared public nuisance--Protective operations by secretary.
38-22-16.1
Weeds or pests in any amount considered infestation.
38-22-16.2
Property owner who allows spread of infestation of noxious weeds or mountain pine
beetle responsible for remedy.
38-22-17
Notice to owner of infested land--Service--Contents.
38-22-17.1
Noncompliance with orders as misdemeanor.
38-22-17.2
Intervention on federal land by State Weed and Pest Control Commission.
38-22-18
Service of notice on nonresident owner of infested land.
38-22-19
Police powers of state personnel in enforcement of chapter.
38-22-20
Entry by state personnel not deemed trespass--Crop damage not assessed.
38-22-21
Certification to county auditor of cost of protective operations on infested land--Collection as taxes.
38-22-22
Responsibility for cost of operations on publicly owned land.
38-22-22.1
Responsibility for weed and pest control.
38-22-23
Repealed.
38-22-23.1
Meeting to appoint or provide for election of county weed and pest board--Notice.
38-22-23.2
Members of county weed and pest board--Number--Terms--Qualifications.
38-22-23.3
Time for selecting board.
38-22-23.4
Subsequent appointment or election of weed board.
38-22-23.5
Board member to be appointed or elected from first or second class municipality.
38-22-23.6
Removal of board members.
38-22-1.1. Administration of commission under department supervision--Independent functions retained by commission.
The South Dakota Weed and Pest Control Commission shall be administered under the direction and supervision of the department and the secretary of agriculture and natural resources. The commission retains the quasi-judicial, quasi-legislative, advisory, other nonadministrative and special budgetary functions (as defined in § 1-32-1) otherwise vested in it and may exercise those functions independently of the secretary.
Source: SL 1973, ch 2, § 193; SL 1983, ch 282, § 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-22-1.2. Definitions.
Terms used in this chapter mean:
(1) "Agricultural chemical," any material used to control or eradicate weeds or pests;
(2) "Board," any county weed and pest board;
(3) "Board member area," a geographical area within a county from which a member of the board is appointed;
(4) "Commission," the South Dakota Weed and Pest Control Commission;
(5) "Control," the prevention or limiting of the growth, spread, or development of weeds or pests;
(6) "Department," the State Department of Agriculture and Natural Resources;
(7) "Pest," any rodent, bird, other than a game bird or a state or federally protected bird, insect, or nematode which the commission has found to be detrimental to the production of crop or livestock or to the welfare of persons residing within the state. Prairie dogs are included in the definition of a pest if all of the following conditions apply:
(a) Sylvatic plague has been reported in any prairie dog colony east of the Rocky Mountains;
(b) The South Dakota Department of Game, Fish and Parks has determined that the population of prairie dogs within the state, including tribal lands, exceeds the one hundred forty-five thousand acre level;
(c) Prairie dogs are colonizing on lands where the prairie dogs are unwanted by the owner of the impacted land;
(d) Lands adjacent to the impacted owner's land do not have a maintained one-mile buffer zone, or other mutually agreed border, in which prairie dog control is applied; and
(i) The owner of the impacted land has filed a written complaint of encroachment requesting mitigation or abatement with the South Dakota Department of Agriculture and Natural Resources and served a copy upon the owner of adjoining lands from which the prairie dogs are encroaching; or
(ii) The owner of the impacted land has filed a written complaint of the encroachment with the county weed and pest board;
(8) "Pesticide," a substance or mixture of substances for preventing, destroying, repelling, or mitigating any pest or any substance or mixture of substances intended for use as a plant regulatory, defoliant, or desiccant or any substance or mixture of substances intended to be used as a spray adjuvant;
(9) "Secretary," the state secretary of the Department of Agriculture and Natural Resources;
(10) "Supervisor," any person appointed or employed by a board for the purpose of carrying out the provisions of this chapter;
(11) "Weed," any plant which the commission has found to be detrimental to the production of crops or livestock or to the welfare of persons residing within the state.
Source: SL 1983, ch 282, § 1; SL 1989, ch 345, § 1; SL 2005, ch 212, § 1; SL 2007, ch 228, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-22-1.3. State Weed and Pest Control Commission abolished.
The State Weed and Pest Control Commission established in this chapter is abolished.
Source: SL 1987, ch 393 (Ex. Ord. 87-4), § 19.
38-22-1.4. South Dakota Weed and Pest Control Commission established.
There is established the South Dakota Weed and Pest Control Commission.
Source: SL 1987, ch 393 (Ex. Ord. 87-4), § 20.
38-22-1.5. Composition of commission.
The South Dakota Weed and Pest Control Commission consists of the following members: the secretary of agriculture and natural resources or a designee and the dean of the college of agriculture and biological sciences of South Dakota State University or a designee who shall serve as nonvoting members, the secretary of transportation or a designee, the secretary of game, fish and parks or a designee, the commissioner of school and public lands or a designee, a member of the South Dakota Association of County Commissioners to be appointed by that association, and five members appointed by the Governor as provided in § 38-22-1.6.
Source: SL 1987, ch 393 (Ex. Ord. 87-4), § 21; SL 2002, ch 189, § 1; SL 2010, ch 199, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-22-1.6. Nomination of appointive members of commission--Areas represented--Length of terms.
The five members of the South Dakota Weed and Pest Control Commission appointed by the Governor shall be selected from a list of nominees presented by the State Association of County Weed and Pest Boards, who shall submit at least three names for each appointment. One member from District I shall reside within the counties of Beadle, Brookings, Brown, Clark, Codington, Day, Deuel, Edmunds, Faulk, Grant, Hamlin, Hand, Hyde, Kingsbury, Marshall, McPherson, Roberts, or Spink; one member from District II shall reside within the counties of Aurora, Bon Homme, Brule, Buffalo, Charles Mix, Clay, Davison, Douglas, Hanson, Hutchinson, Jerauld, Lake, Lincoln, McCook, Miner, Minnehaha, Moody, Sanborn, Turner, Union, or Yankton; one member from District III shall reside within the counties of Bennett, Campbell, Corson, Dewey, Gregory, Haakon, Hughes, Jackson, Jones, Lyman, Mellette, Potter, Stanley, Sully, Todd, Tripp, Walworth, or Ziebach; and one member from District IV shall reside within the counties of Butte, Custer, Fall River, Harding, Lawrence, Meade, Oglala Lakota, Pennington, or Perkins; and one additional South Dakota resident shall be appointed by the Governor to serve as an at-large member of the commission selected from a list of names representing one individual from each district. The term of each member appointed pursuant to this section shall be for no more than two consecutive four-year terms with the exception of the initial appointments which shall be made as follows: District I for a one-year term, District II for a two-year term, District III for a three-year term, and District IV for a four-year term. As the term of any gubernatorial member expires, a new member shall be appointed from the district for a period of four years. If a vacancy occurs in any of the terms, the Governor may appoint a successor in the manner described in this section to complete the term.
Source: SL 1987, ch 393 (Ex. Ord. 87-4), § 22; SL 2010, ch 199, § 2; SL 2015, ch 56 (HJR 1005), eff. May 1, 2015.
38-22-1.7. Functions of commission.
The South Dakota Weed and Pest Control Commission shall perform all of the functions and have all of the responsibilities of the former State Weed and Pest Control Commission established in this chapter.
Source: SL 1987, ch 393 (Ex. Ord. 87-4), § 23.
38-22-1.8. End of current terms--Commencement of new terms--Term limits.
The terms of the appointed members of the South Dakota Weed and Pest Control Commission in office on July 1, 2010, continue until January 1, 2011, at which time their terms end. The Governor shall appoint five members pursuant to § 38-22-1.6. Terms for those members shall begin on January 1, 2011. The appointments may include former or currently serving commission members. No term previous to the reformulation of the commission pursuant to SL 2010, ch 199 may be considered in regard to term limitations.
Source: SL 2010, ch 199, § 3.
38-22-5. Meetings of commission--Election and terms of officers.
The South Dakota Weed and Pest Control Commission shall hold its meetings at such times as it may designate, but the annual meeting shall be held on such date as may be established by rules promulgated pursuant to chapter 1-26 at which meeting a president and vice-president shall be elected; however, the president may call special meetings. The president and vice-president shall be elected from among the members of the commission for a term of one year beginning with the meeting at which they are elected.
Source: SL 1945, ch 349, § 2; SL 1949, ch 437; SDC Supp 1960, § 62.0302; SL 1975, ch 252, § 3; SL 1983, ch 282, § 6; SL 1986, ch 326, § 52.
38-22-6. Appointment of state weed and pest coordinator.
The secretary of agriculture and natural resources shall appoint a state weed and pest coordinator, who may not be a member of the South Dakota Weed and Pest Control Commission.
Source: SL 1945, ch 349, §§ 2, 3; SL 1949, ch 437; SDC Supp 1960, §§ 62.0302, 62.0303; SL 1975, ch 252, § 4; SL 1983, ch 282, § 7; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-22-7. Formulation of weed and pest program.
The South Dakota Weed and Pest Control Commission shall formulate a weed and pest program for the prevention, suppression, control, and eradication of weeds and pests in South Dakota.
Source: SL 1945, ch 349, § 3; SL 1949, ch 437; SDC Supp 1960, § 62.0303; SL 1983, ch 282, § 8.
38-22-8. Cooperation with other state agencies--Functions of experiment station and extension service.
The South Dakota Weed and Pest Control Commission and the Department of Agriculture and Natural Resources shall at all times work in close cooperation with all state agencies, and particularly, they shall cooperate with the South Dakota State University agricultural experiment station in matters of research and their research shall be carried on by the experiment station; they shall cooperate with the South Dakota State University Agricultural Extension Service in matters of education and publicity and the extension service shall handle all matters of education and publicity.
Source: SL 1945, ch 349, § 5; SDC Supp 1960, § 62.0305; SL 1983, ch 282, § 9; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-22-9. Determination and publication of lists of state weeds and pests.
The South Dakota Weed and Pest Control Commission, pursuant to rules promulgated pursuant to the provisions of chapter 1-26, may determine which plants and animals shall be considered to be weeds and pests and shall from time to time prepare, and the Department of Agriculture and Natural Resources shall publish, a list of state weeds and pests.
Source: SL 1945, ch 349, § 3; SL 1949, ch 437; SDC Supp 1960, § 62.0303; SL 1983, ch 282, § 10; SL 1986, ch 326, § 49; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-22-11. Enforcement of commission rules, regulations, processes, subpoenas, and orders.
The rules, processes, subpoenas, and orders of the South Dakota Weed and Pest Control Commission may be enforced by any court of competent jurisdiction.
Source: SL 1949, ch 437; SDC Supp 1960, § 62.0303; SL 1983, ch 282, § 13; SL 1986, ch 326, § 50.
38-22-11.1. Promulgation of rules.
The commission may promulgate rules pursuant to chapter 1-26:
(1) To provide procedures for enforcement of weed and pest control;
(2) To provide for records and reports;
(3) To prescribe county weed and pest board activities;
(4) To prescribe what constitutes a weed or pest;
(5) To prescribe when an infestation constitutes a menace; and
(6) To establish standards for application, economic feasibility, technical feasibility, reporting, and evaluation of weed and pest control projects.
Source: SL 1986, ch 326, § 51; SL 1989, ch 345, § 8.
38-22-12. Administration of state weed and pest program.
The state weed and pest coordinator shall administer the state weed and pest program formulated by the South Dakota Weed and Pest Control Commission.
Source: SL 1945, ch 349, § 5; SDC Supp 1960, § 62.0305; SL 1983, ch 282, § 14.
38-22-13. Moving agricultural machinery without cleaning as misdemeanor.
It is a Class 2 misdemeanor for any person to move any harvesting or portable seed cleaning or agricultural processing equipment or vehicles on which the equipment is transported into this state or from any field within the state in which it has been used to another field without first cleaning such equipment and vehicles. For purposes of this section, equipment and vehicles are deemed to be clean if essentially free from dirt, seed, straw, and chaff.
Source: SL 1955, ch 436; SDC Supp 1960, §§ 62.0309 (2), 62.9901; SL 1973, ch 256, §§ 1, 2; SDCL, § 38-22-15; SL 1977, ch 190, § 331; SL 1983, ch 282, § 15.
38-22-16. Infested land declared public nuisance--Protective operations by secretary.
If any owner of weed or pest infested land fails to rid the land of such infestation and the secretary of agriculture and natural resources finds that such infestation is a menace to neighboring lands or to the state or its people he may declare such infested land to constitute a public nuisance and may enter such infested areas and perform such protective operations as may be necessary.
Source: SL 1945, ch 349, § 8; SL 1949, ch 437; SDC Supp 1960, § 62.0308; SL 1970, ch 225, § 5; SL 1983, ch 282, § 16; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-22-16.1. Weeds or pests in any amount considered infestation.
The existence of weeds or pests in any amount or quantity upon land is sufficient to determine that such land is infested.
Source: SL 1970, ch 225, § 2; SL 1983, ch 282, § 17.
38-22-16.2. Property owner who allows spread of infestation of noxious weeds or mountain pine beetle responsible for remedy.
If an infestation of noxious weeds or an infestation of mountain pine beetle spreads to adjacent private or public land, the person or entity owning the property from which the infestation spread is responsible for remedying the problems caused by the infestation, to the extent that the person or entity is responsible for allowing the infestation to spread to the adjacent private or public land.
Source: SL 2000, ch 202, § 1.
38-22-17. Notice to owner of infested land--Service--Contents.
No operations to rid lands of infestation may be undertaken pursuant to § 38-22-16 until notice of the declaration that such infested land constitutes a nuisance has been given to the owner. Notice shall be given by personal service upon the owner, if a resident of this state, a copy of the declaration filed in the office of the county auditor, in the manner that summons in civil actions are served, or by personal service upon the person in actual possession of the premises, together with a copy of the declaration provided for in § 38-22-16, that unless the owner complies with the orders of the secretary of agriculture and natural resources within such time as the declaration states, which may be not less than three days nor more than fifteen days from the date of service, as specified in the notice, that protective operations shall be performed by the secretary and, if the owner does not pay the costs of such operations prior to the first day of November in the year in which the operations are performed, the cost shall become a lien against the lands of the owner.
Source: SL 1945, ch 349, § 8; SL 1949, ch 437; SDC Supp 1960, § 62.0308; SL 1983, ch 282, § 18; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-22-17.1. Noncompliance with orders as misdemeanor.
It is a Class 2 misdemeanor for any owner, occupant, or other person who maintains or exercises control or management over land to fail to comply with any order of the secretary of agriculture and natural resources or the South Dakota Weed and Pest Control Commission to effectuate the purposes in this chapter.
Source: SL 1970, ch 225, § 3; SL 1977, ch 190, § 333; SL 1983, ch 282, § 19; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-22-17.2. Intervention on federal land by State Weed and Pest Control Commission.
If any agency of the United States fails or refuses to suppress weeds or pests on any land owned or controlled by such agency after receiving notice of such infestation by the county weed and pest board pursuant to this chapter, the South Dakota Weed and Pest Control Commission, at the request of the county board, shall intervene on its behalf. The attorney general shall provide such legal counsel as the South Dakota Weed and Pest Control Commission may require to resolve any such dispute.
Source: SL 1987, ch 290.
38-22-18. Service of notice on nonresident owner of infested land.
If the owner of infested land is not a resident of South Dakota, service of notice may be made by posting such notice at the courthouse in the county in which the land is situated, and by mailing to the last known address of the owner. Service is deemed complete five days after the date of the posting and mailing of the notices, which shall be evidenced by the affidavit of a person qualified to serve civil process in this state to be filed with the county auditor. However personal service upon the owner outside of this state is sufficient.
Source: SL 1949, ch 437; SDC Supp 1960, § 62.0308; SL 1983, ch 282, § 20.
38-22-19. Police powers of state personnel in enforcement of chapter.
In the performance of their duties, pursuant to this chapter, the South Dakota Weed and Pest Control Commission, the secretary of agriculture and natural resources, his assistants, inspectors, agents, and employees are vested with police powers.
Source: SL 1949, ch 437; SDC Supp 1960, § 62.0308; SL 1983, ch 282, § 21; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-22-20. Entry by state personnel not deemed trespass--Crop damage not assessed.
The entrance by an agent or employee of the secretary of agriculture and natural resources, county or supervisor, upon property, in performing his duties, pursuant to this chapter, does not constitute trespass, nor may damage be assessed against the state, the secretary, his agents or employees, the county, or any supervisor doing weed or pest control work.
Source: SL 1949, ch 437; SDC Supp 1960, § 62.0308; SL 1983, ch 282, § 22; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-22-21. Certification to county auditor of cost of protective operations on infested land--Collection as taxes.
Upon completion of protective operations, the secretary of agriculture and natural resources shall certify to the county auditor the expenses for the performance of the protective operations, and the county auditor shall issue a warrant to the party entitled to payment of the costs of such protective operations from funds appropriated for that purpose. The owner of such infested land is indebted to the county for such expense actually incurred, and if not paid on or before the first day of November following such operations, such county auditor shall extend the amount of such indebtedness on the tax list against the infested land and all land owned by such owner contiguous thereto, in a separate column headed "weed and pest control" and the amount shall be collected as other taxes are collected.
Source: SL 1890, ch 116, § 4; RPolC 1903, § 3179; SL 1913, ch 282, § 4; SL 1917, ch 319, § 4; RC 1919, § 10408; SDC 1939, § 62.0304; SL 1945, ch 349, § 8; SL 1949, ch 437; SDC Supp 1960, § 62.0308; SL 1974, ch 256; SL 1983, ch 282, § 23; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-22-22. Responsibility for cost of operations on publicly owned land.
The responsibility for and the cost of controlling and eradicating weeds and pests on all lands or highways owned or supervised by a state agency or subdivision shall be upon the state agency or subdivision supervising such lands or highways, and paid out of funds appropriated to its use.
Source: SL 1943, ch 312, § 6; SL 1945, ch 349, § 7; SDC Supp 1960, § 62.0307; SL 1983, ch 282, § 24.
38-22-22.1. Responsibility for weed and pest control.
All provisions, requirements, and responsibility for weed and pest control included in this chapter apply to all state government agencies and subdivisions on lands, highways, and roads owned, managed, maintained, or supervised by the government entity.
Source: SL 1998, ch 248, § 1.
38-22-23.1. Meeting to appoint or provide for election of county weed and pest board--Notice.
The board of county commissioners of each county shall hold a public meeting to appoint or provide for the election of a county weed and pest board no later than February 1, 1984. Prior to the meeting the board of county commissioners shall establish the number of members of the board and shall establish board member areas. Each board member area shall be compact and contiguous. Notice of the meeting shall be advertised by publication in the official newspapers of the county, at least ten days before the meeting, and in any other manner as the board of county commissioners may provide.
Source: SL 1983, ch 282, § 26.
38-22-23.2. Members of county weed and pest board--Number--Terms--Qualifications.
The board of county commissioners shall appoint or provide for the election of a county weed and pest board which shall consist of five or seven members. However, one member shall be a county commissioner appointed by the board of county commissioners. Each member shall serve for a term of three years or until his successor is appointed and qualified. The board of county commissioners may stagger the initial appointments so that the terms of all of the board members do not expire at the same time. Any qualified elector, residing in the board member area he is appointed to represent, is eligible to be a member.
Source: SL 1983, ch 282, § 27.
38-22-23.3. Time for selecting board.
Each board of county commissioners shall appoint or elect a county weed and pest board no later than March 1, 1984.
Source: SL 1983, ch 282, § 28.
38-22-23.4. Subsequent appointment or election of weed board.
After the initial county weed and pest board has been appointed or elected, the board of county commissioners shall appoint or provide for the election of members to fill expired terms or vacancies. Each board member shall assume office at the first regular meeting of the board following appointment or election.
Source: SL 1983, ch 282, § 29; SL 1984, ch 266, § 1.
38-22-23.5. Board member to be appointed or elected from first or second class municipality.
In any county containing a first or second class municipality with a population of five thousand or more, at least one county weed and pest board member shall be appointed or elected from within the limits of the municipality.
Source: SL 1983, ch 282, § 30; SL 1984, ch 266, § 2; SL 1992, ch 60, § 2.
38-22-23.6. Removal of board members.
The board of county commissioners may remove a member for repeated failure to attend meetings or for refusal or incapacity to act as a county weed and pest board member.
Source: SL 1983, ch 282, § 31.
38-22-23.7. Initial officers of board--Election.
At its first annual meeting, the county weed and pest board shall elect a chairman, a vice-chairman, a secretary, and a treasurer. The positions of secretary and treasurer may be consolidated at the discretion of the board and need not be members of the board.
Source: SL 1983, ch 282, § 32.
38-22-23.8. Compensation and expense allowances of board members.
The board of county commissioners shall establish rates of compensation and expense and mileage allowances for the county weed and pest board members.
Source: SL 1983, ch 282, § 33.
38-22-23.9. Powers of board.
The county weed and pest board may:
(1) Employ administrative personnel and determine duties and conditions of employment;
(2) Coordinate activities with state and federal agencies and enter into cooperative agreements, including agreements entered into pursuant to chapter 1-24;
(3) Control and disburse money received from any source, including state and federal agencies;
(4) Secure and maintain bonds or liability insurance.
Source: SL 1983, ch 282, § 34.
38-22-23.10. Duties of board.
The county weed and pest board shall:
(1) Implement and pursue an effective program for the control of weeds and pests;
(2) Hold regular meetings;
(3) Keep minutes of all meetings and a record of all official acts;
(4) Submit a yearly report to the Department of Agriculture and Natural Resources covering the activities of the board and submit reports to the board of county commissioners as the board may require;
(5) Employ supervisors and, if necessary, deputies;
(6) Make at least one annual inspection to determine the progress of weed and pest control within a county and make written reports covering the inspections available for public use; and
(7) Obtain competitive bids for any purchase in accordance with the requirements established by law for other county purchases.
Source: SL 1983, ch 282, § 35; SL 1984, ch 266, § 3; SL 1991, ch 327; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-22-23.11. Purchase, sale, and application of agricultural chemicals and poisons by board--Equipment--Labor.
The county weed and pest board may purchase such quantities of agricultural chemicals, poisons, and equipment and hire such labor necessary to carry out the provisions of this chapter. The board may sell and apply agricultural chemicals and poisons for weed and pest control if such services, chemicals, and poisons are not available through commercial sources.
Source: SL 1983, ch 282, § 36; SL 1984, ch 266, § 4; SL 1986, ch 333, § 2.
38-22-23.12. Investigation of suspected land--Notice required for entry.
If a county weed and pest board has probable cause to believe there is land upon which exist weeds or pests that may spread or contribute to the injury or detriment of others, it shall investigate the suspected premises. The designated representative of the board, after giving the landowner written notice, may go upon the premises without interference or obstruction for purposes of making a reasonable investigation of the infested area. Such notice is considered given if it is given to the landowner or operator personally at least one day before entry or if it is mailed, by certified mail, addressed to the last known address of the landowner at least five days before entry. A board may serve notice of intent to inspect on all landowners by publishing a legal notice of such intent at least thirty days before entry in the county's official newspaper.
Source: SL 1983, ch 282, § 37; SL 1984, ch 266, § 5.
38-22-23.13. Resolution of board confirming infestation and stating remedial requirements--Service on owner--Termination of resolution.
If the suspected area is found to contain weeds or pests, the county weed and pest board, by resolution adopted by a majority of its members, shall confirm such fact and set forth minimum remedial requirements for control of the area. The board shall mail, by certified mail, to the address of the landowner, a copy of the resolution, a statement of the approximate cost of fulfilling the requirements, and a request that the requirements contained in the resolution be carried out at the owner's expense within a designated period of time. When the board is satisfied that the requirements have been met, the board shall terminate the resolution and file a copy of the termination with the register of deeds.
Source: SL 1983, ch 282, § 38; SL 2005, ch 213, § 1.
38-22-23.14. Remedial action by board on owner's failure--Certification of expenses--Collection.
If the landowner fails or refuses to perform as required within the time designated, the county weed and pest board may proceed to perform the requirements. The board shall certify its expenses to the county auditor, and the auditor shall bill the landowner for the amount of the expenses, plus an administrative fee of fifty dollars or ten percent of the cost of control, whichever is greater. If the landowner has not paid the bill by November first of the calendar year in which the expenses were incurred, the amount of the bill shall be further increased by ten percent, and the adjusted amount shall be charged as taxes against each tract of land on which the expenses were incurred. The adjusted amount shall be collected as other taxes and credited to the general fund.
Source: SL 1983, ch 282, § 39; SL 1996, ch 247; SL 2001, ch 217, § 2.
38-22-23.15. Responsibility for control costs on state lands.
The costs of controlling weeds and pests on lands owned or supervised by the state shall be paid out of funds appropriated to the state agency that has responsibility for those lands.
Source: SL 1983, ch 282, § 40.
38-22-23.16. Penalty for failure to reimburse board for requested operations.
If the county weed and pest board is requested by an individual to perform weed and pest control operations on the individual's property and the individual fails to reimburse the county by November first in the year in which the operations are performed, the cost of the control, plus an administrative fee of fifty dollars or ten percent of the cost of control, whichever is greater, shall be charged as taxes against each tract of land on which the expenses were incurred pursuant to § 38-22-23.14.
Source: SL 2001, ch 217, § 1.
38-22-23.17. Civil penalty for continued failure to perform minimum remedial requirements.
Any owner, occupant, or other person who maintains or exercises control or management over land who is issued a resolution by the county weed and pest board pursuant to § 38-22-23.13 for three consecutive years and fails to perform the minimum remedial requirements for control is subject to a civil penalty of up to five hundred dollars. Any owner, occupant, or other person who maintains or exercises control or management over land on which the county weed and pest board has performed remedial requirements pursuant to § 38-22-23.14 for three consecutive years is subject to a civil penalty of up to five hundred dollars.
Source: SL 2001, ch 217, § 3.
38-22-24. Expenditure of county funds.
The board of county commissioners may, based upon the budget submitted by the county weed and pest board, appropriate and expend money from the general fund of the county for the purpose of this chapter.
Source: SL 1890, ch 116, § 3; RPolC 1903, § 3178; SL 1913, ch 282, § 3; SL 1917, ch 319, § 3; RC 1919, § 10407; SDC 1939, § 62.0303; SL 1945, ch 349, § 6; SL 1947, ch 422; SL 1949, ch 437; SL 1951, ch 465; SL 1955, ch 437; SDC Supp 1960, § 62.0306; SL 1961, ch 10, § 6; SL 1972, ch 213; SL 1983, ch 282, § 41.
38-22-26. Organization for weed and pest control prerequisite to appropriation.
No appropriations may be made pursuant to § 38-22-24 until the county has been organized for weed and pest control pursuant to this chapter.
Source: SL 1945, ch 349, § 6; SL 1947, ch 422; SL 1949, ch 437; SL 1951, ch 465; SL 1955, ch 437; SDC Supp 1960, § 62.0306; SL 1961, ch 10, § 6; SL 1983, ch 282, § 43; SL 1985, ch 77, § 25.
38-22-30. Prosecution of violations--Collection and disposition of forfeitures and fines.
The state's attorney shall, upon complaint, prosecute any person who violates any provision of this chapter and enforce the collection of forfeitures and fines. Such forfeitures or fines shall be deposited in the general fund of the county in which the prosecution is brought.
Source: SL 1890, ch 116, § 7; RPolC 1903, § 3182; SL 1913, ch 282, § 6; RC 1919, § 10410; SDC 1939, § 62.0102; SL 1983, ch 282, § 46.
38-22-31. Prosecutions under drug laws not precluded.
The penalties provided in this chapter are not intended, nor may they be used, to prevent prosecution for the violation of any of the provisions of chapter 34-20B or chapter 39-15.
Source: SL 1970, ch 225, § 4; SL 1983, ch 282, § 47.
38-22-32. Department assisting boards--Agreements with federal agencies--Employment and purchases authorized.
The Department of Agriculture and Natural Resources may assist, advise, and coordinate the county weed and pest boards. The secretary of agriculture and natural resources may enter into cooperative agreements with any state or federal agency to accomplish the purposes of this chapter, and he may employ such assistance and purchase such supplies and equipment as may be necessary.
Source: SL 1983, ch 282, § 48; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-22-33. Transportation of plant products containing weed seed as misdemeanor.
It is a Class 2 misdemeanor for any person to transport hay, livestock feeds or other plant products containing weed seed in such a manner as may constitute a substantial risk of contaminating fields or other lands.
Source: SL 1983, ch 282, § 49.
38-22-34. Levy for weed and pest control programs in community--Administration by board.
With the approval of two-thirds of the landowners, a community may petition the county to assess a special levy to be used for weed and pest control programs in that community. For the purposes of this section, a community is any township, a natural or artificial geographic area, or a subdivision of a board member area as designated by the county weed and pest board and represented by a community representative. Any such program for the control of weeds and pests which is funded by a special levy shall be administered through the county weed and pest board.
Source: SL 1986, ch 333, § 1.
38-22-35. Weed and pest control fund.
All funds collected pursuant to § 38-22-36 shall be deposited with the state treasurer in a special fund known as the "weed and pest control fund."
Source: SL 1989, ch 345, § 2; SL 1993, ch 305, § 1A; SL 1998, ch 247, § 8.
38-22-36. Funds for weed and pest control fund.
The commission may accept gifts, grants, contracts, or other funds designated for weed and pest management. Such funds shall be deposited in the weed and pest control fund and may be expended pursuant to § 38-22-38.
Source: SL 1989, ch 345, § 4.
38-22-38. Expenditure of weed and pest control funds.
The commission may expend weed and pest control funds through grants or contracts to weed and pest control boards, governmental agencies, or other entities it considers appropriate for weed and pest control projects for the following:
(1) Employment of a new and innovative weed and pest control project or the development, implementation, or demonstration of any weed and pest control project that may be proposed, implemented, or established by local, state, or national organizations, whether public or private. Such expenditures shall be on a cost-share basis with such organizations;
(2) Weed and pest control cost-share programs with county weed and pest boards;
(3) Special grants to county weed and pest control boards to eradicate or contain significant weeds or pests newly introduced into the county. These grants may be issued without matching funds from the board;
(4) Assist county weed and pest boards in purchasing pesticides and application equipment and hiring labor necessary to protect against expansion of noxious weeds and declared pests;
(5) Support multi-county weed and pest control and eradication efforts;
(6) Promote landowner responsibility to control noxious weeds and pests in South Dakota;
(7) Support educational and research efforts to find new and better ways of controlling noxious weeds and pests.
A project is eligible to receive funds only if the county in which the project occurs has funded its own weed and pest program. The commission may also expend funds to pay for the costs of administering the weed and pest control fund not to exceed three percent of the allowable expenditure for each fiscal year and for administrative expenses incurred by the commission.
Source: SL 1989, ch 345, § 7; SL 1996, ch 246, § 2.
38-23-1, 38-23-1.1. Repealed.
38-23-2 to 38-23-14. Repealed.
38-24A-1
Definition of terms.
38-24A-2
Administration by secretary--Delegation of authority--Rules and regulations.
38-24A-3
Suppression and control activities authorized.
38-24A-4
Cooperation with other agencies--Expenditure of funds.
38-24A-5
Interstate cooperation in control activities.
38-24A-6
Quarantines and embargoes authorized.
38-24A-7
Limitation of quarantined area--Extension.
38-24A-8
Repealed.
38-24A-9
Scope of rules relating to regulated area--Publication of notice.
38-24A-9.1
Emergency quarantine measures--Public hearing--Notice--Duration of emergency
measures--When chapter 1-26 becomes applicable.
38-24A-10
Movements contrary to quarantine rules prohibited.
38-24A-11
Quarantine violation as misdemeanor.
38-24A-12
Seizure and treatment or disposal of infested articles--Notice to owner.
38-24A-12.1
Liability for expenses of seizure, treatment, etc.--Assessment and collection--Penalties--Tax list as presumptive evidence of liability of land.
38-24A-13
Public notice of large-scale treatment operations.
38-24A-14
Inspection powers of secretary--Notice.
38-24A-15
Issuance of search warrants.
38-24A-16
Compensation for uninfested articles destroyed.
38-24A-17
Violation as misdemeanor--Civil liability for damages.
38-24A-18
Severability of provisions.
38-24A-19
Citation of chapter--Additional to other powers.
38-24A-20
Special certificates on plants for export.
38-24A-21
Inspection of plants intended for export--Certificate--Fees.
38-24A-1. Definition of terms.
Terms as used in this chapter, unless the context otherwise requires, mean:
(1) "Certificate," a document issued or authorized by the secretary indicating that a regulated article is not contaminated with a pest and is eligible for movement;
(2) "Designated agent," any United States government agency or employee or any individual or member of any agency or organization commissioned by the secretary of agriculture and natural resources to aid in the enforcement of the provisions of this chapter;
(3) "Host," any plant or plant product upon which a pest is dependent for completion of any portion of its life cycle;
(4) "Infested," actually infested or infected with a pest in any amount or quantity or so exposed to infestation that it would be reasonable to believe that an infestation exists;
(5) "Move," to ship, offer for shipment, receive for transportation, carry, or otherwise transport, move, or allow to be moved;
(6) "Permit," a document issued or authorized by the secretary to provide for the movement of regulated articles to restricted destinations for limited handling, utilization, or processing;
(7) "Pest," any animal, plant, insect, or infectious transmissible or contagious disease, or other organism, causing or capable of causing injury or which is or may be dangerous or detrimental to the plant industry of the state;
(8) "Regulated article," any article of any character as described in a quarantine carrying or capable of carrying the pest against which a quarantine is directed;
(9) "Regulated pest," a pest which the secretary determines is sufficiently detrimental to the plant industry of the state to warrant control or eradication measures.
Source: SL 1971, ch 220, § 1; SL 1986, ch 334, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24A-2. Administration by secretary--Delegation of authority--Rules and regulations.
The secretary of agriculture and natural resources has the responsibility for administration of the provisions of this chapter. The secretary is authorized to assign functions provided for in this chapter to any unit of his department and to delegate any authority provided for in this chapter to a designated agent to be exercised under his general supervision.
Source: SL 1971, ch 220, § 2; SL 1986, ch 326, § 53; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24A-3. Suppression and control activities authorized.
The secretary of agriculture and natural resources, either independently or in cooperation with counties or political subdivisions thereof, municipalities, farmers' associations or similar organizations, individuals, federal agencies, or agencies of other states, is authorized to carry out operations or measures to locate, suppress, control, prevent, or retard the spread of pests.
Source: SL 1971, ch 220, § 3; SL 1992, ch 60, § 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24A-4. Cooperation with other agencies--Expenditure of funds.
The secretary of agriculture and natural resources is authorized to cooperate with any agency he deems necessary to suppress, control, prevent, or retard the spread of any pest including the right to expend state funds on federal, state, and private lands for such purposes.
Source: SL 1971, ch 220, § 9; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24A-5. Interstate cooperation in control activities.
The secretary of agriculture and natural resources is authorized to cooperate with agencies of adjacent states in such operations and measures as he deems necessary to locate, suppress, control, or to prevent or retard the spread of any pest; provided, that the use of funds for operations in adjacent states must be approved in advance by the Governor or his designee.
Source: SL 1971, ch 220, § 9; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24A-6. Quarantines and embargoes authorized.
The secretary of agriculture and natural resources is authorized to quarantine this state or any portion thereof when he shall determine that such action is necessary to prevent or retard the spread of a pest within or from this state and to place an embargo on articles from any other state or portion thereof whenever he determines that a pest exists therein and that such action is necessary to prevent or retard its spread into this state.
Source: SL 1971, ch 220, § 4; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24A-7. Limitation of quarantined area--Extension.
The secretary of agriculture and natural resources may limit the application of the quarantine to the infested portion of the quarantined area and appropriate environs, to be known as the regulated area, and may, without further hearing, extend the regulated area to include additional portions of the quarantined area upon publication of a notice to that effect in such newspapers in the quarantined area as he may select or by direct written notice to those concerned.
Source: SL 1971, ch 220, § 4; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24A-9. Scope of rules relating to regulated area--Publication of notice.
The secretary may promulgate rules pursuant to chapter 1-26:
(1) To provide standards and procedures for location, suppression, prevention, retardation, and control of the spread of pests;
(2) To provide standards and procedures for plant quarantines and embargoes;
(3) To provide restrictions for the movement of pests, hosts, and regulated articles from quarantined or embargoed areas;
(4) To provide standards and procedures to seize, treat, or dispose of pests, hosts, or regulated articles;
(5) To provide standards for restrictions regarding inspection, disinfection, treatment, and certification of plants from quarantined or regulated areas; and
(6) To establish fees for inspection and certification or to recover costs for pest control efforts.
In addition to the reporting requirements of chapter 1-26 notice of the rules shall be published in such newspapers in the quarantined area as the secretary may select.
Source: SL 1971, ch 220, § 5; SL 1986, ch 326, § 56.
38-24A-9.1. Emergency quarantine measures--Public hearing--Notice--Duration of emergency measures--When chapter 1-26 becomes applicable.
Other provisions of this chapter and the provisions of chapter 1-26 notwithstanding, the secretary may adopt emergency measures to quarantine or otherwise control plant infestations on an emergency basis. Such measures shall be subject to a public hearing, which shall be held within twenty-one days of implementation of such measures, but no official decision need be undertaken at the conclusion of such hearing. Notice of such hearing shall be published at least once in at least one official newspaper in the infested area. Such emergency measures shall be valid for a period of ninety days from implementation of the measures. After ninety days, such measures shall be subject to the rule-making procedures of chapter 1-26.
Source: SL 1986, ch 326, § 54.
38-24A-10. Movements contrary to quarantine rules prohibited.
Following establishment of a quarantine, no person shall move any regulated article described in the quarantine or move the pest against which the quarantine is established, within, from, into, or through this state contrary to rules promulgated by the secretary of agriculture and natural resources.
Source: SL 1971, ch 220, § 5; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24A-11. Quarantine violation as misdemeanor.
Any person who has knowingly moved any regulated article into this state from any quarantined area of any other state, which article has not been treated or handled under provisions of the quarantine and rules, to remove all possibilities of infestation and damage, in effect at the point of origin, is guilty of a Class 1 misdemeanor.
Source: SL 1971, ch 220, § 10; SL 1977, ch 190, § 344.
38-24A-12. Seizure and treatment or disposal of infested articles--Notice to owner.
Whenever the secretary of agriculture and natural resources or his designated agent finds any article that is infested or reasonably believed to be infested or a host or pest exists on any property or is in transit in this state, he may, upon giving notice to the owner or his representative in possession thereof, seize, quarantine, treat, or otherwise dispose of such pest, host, or article in such manner as the secretary or his designated agent considers necessary to suppress, control, prevent, or retard the spread of the pest. The secretary or his designated agent may order such owner or agent to so treat or otherwise dispose of the pest, host, or article before removing from the quarantined area. A notice or order is considered given if it is given by personal service to the owner or his representative, or a copy is sent to the owner by certified mail addressed to the last known address of the owner at least five days before the effective date of the notice or order.
Source: SL 1971, ch 220, § 6; SL 1986, ch 334, § 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24A-12.1. Liability for expenses of seizure, treatment, etc.--Assessment and collection--Penalties--Tax list as presumptive evidence of liability of land.
Any person who owns the premises is liable for the actual and necessary expense in connection with the seizure, quarantine, treatment, or disposal of a pest, host, or regulated article. The liability may be assessed against the premises and collected in the same manner as taxes are collected. The department shall keep an accurate account of the expenses incurred in itemized form and certify it to the county auditor of the county where the land is located. The county auditor shall place the amount upon the next tax list to be prepared in the county, in a separate column to be headed "for the control of pests." The county treasurer shall remit all money collected under this section to the state treasurer who shall deposit it in the general fund. The assessment is subject to all penalties provided for the nonpayment of taxes, and the entry of such expenses upon the tax list is presumptive evidence of the liability of the land to the tax.
Source: SL 1986, ch 334, § 3.
38-24A-13. Public notice of large-scale treatment operations.
Where large areas or metropolitan areas, involving many people, are to be treated, notice may be by means of newspaper, radio, or other news media. Such notice if given by newspaper shall prominently appear at least ten days prior to treatment in at least two issues of a daily paper having local coverage.
Source: SL 1971, ch 220, § 6; SL 1972, ch 236, § 4.
38-24A-14. Inspection powers of secretary--Notice.
To effectuate the purposes of this chapter, the secretary of agriculture and natural resources may, with a search warrant or the consent of the owner, make reasonable inspection of any property in this state. The secretary may, without a search warrant, with or without the assistance of any law enforcement agency, stop and inspect, in a reasonable manner, any means of conveyance moving within this state upon probable cause to believe it contains or carries any pest, host, or other article subject to the provisions of this chapter, and may make any other reasonable inspection of any premises or means of conveyance for which no search warrant is required. The secretary may, if he believes that a pest exists, investigate the suspected premises after giving written notice. Such notice is considered given if it is given to the owner or person in charge of the premises by personal service at least one day before entry, or if it is mailed by certified mail addressed to the last known address of the owner at least five days before entry.
Source: SL 1971, ch 220, § 8; SL 1986, ch 334, § 4; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24A-15. Issuance of search warrants.
The appropriate circuit and magistrate courts in this state shall have authority to issue search warrants for such inspections upon a showing by the secretary of agriculture and natural resources that there is probable cause to believe that there exists in or on the property to be inspected a pest, host, or other article subject to the provisions of this chapter.
Source: SL 1971, ch 220, § 8; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24A-16. Compensation for uninfested articles destroyed.
The owner of any property destroyed or ordered to be treated or otherwise disposed of under this chapter may, in an action against this state in the appropriate court for the county in which he resides or the property was located, recover just compensation for any property so destroyed and the reasonable costs of disposal of any property ordered destroyed, if he establishes that the property was not a pest, host, or infested article.
Source: SL 1971, ch 220, § 7.
38-24A-17. Violation as misdemeanor--Civil liability for damages.
Any person who violates any of the provisions of this chapter or who alters, forges, counterfeits, or uses without authority any certificate or permit or other document provided for in this chapter or in the rules of the secretary of agriculture and natural resources provided for in this chapter, is guilty of a Class 1 misdemeanor. In addition, any person is liable in a civil action for all damage that is occasioned or caused by a violation of this chapter.
Source: SL 1971, ch 220, § 10; SL 1977, ch 190, § 345; SL 2001, ch 218, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24A-18. Severability of provisions.
If any clause, sentence, paragraph, or part of this chapter shall for any reason be judged invalid by any court of competent jurisdiction, such judgment shall not affect, impair, or invalidate the remainder thereof but shall be confined in its operation to the clause, sentence, paragraph, or part thereof directly involved in the controversy in which such judgment shall have been rendered.
Source: SL 1971, ch 220, § 11.
38-24A-19. Citation of chapter--Additional to other powers.
This chapter shall be known as the South Dakota Plant Quarantine Act and may not be construed to repeal any existing authority of the secretary of agriculture and natural resources but shall be in addition to any powers conferred upon the secretary by chapters 38-18, 38-22, and 38-24B.
Source: SL 1971, ch 220, § 12; SL 1986, ch 334, § 5; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24A-20. Special certificates on plants for export.
The Department of Agriculture and Natural Resources may grant special phytosanitary certificates on any plants or plant products for individual shipment to other states in compliance with the plant inspection and plant quarantine regulations of the state of destination or to foreign countries in compliance with the plant inspection and plant quarantine regulations of the countries of destination.
Source: SL 2001, ch 218, § 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24A-21. Inspection of plants intended for export--Certificate--Fees.
Any owner of plants or plant products intending to ship those plants or plant products into another state or country may apply to the Department of Agriculture and Natural Resources for an inspection or for obtaining an official sample. The inspection shall determine the presence of pests or the suitability of processing equipment and grades which would prevent the acceptance of the plants or plant products into other states or countries. Upon receipt of the application, the department may comply with the request and may issue a certificate of facts disclosed. The fee for inspection, obtaining samples, or issuing certificates are as follows:
(1) On-site inspection, two hundred dollars;
(2) Field inspection, two hundred fifty dollars for the first acre and two dollars for each additional acre;
(3) State certificate, fifty dollars;
(4) Federal certificate, one hundred twenty-five dollars;
(5) In-transit compliance agreements, fifty dollars;
(6) In-transit certificates, twenty-five dollars; and
(7) Reissue or replace state or federal phytosanitary certificate, twenty-five dollars.
Source: SL 2001, ch 218, § 3; SL 2010, ch 200, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24B-1
Definitions.
38-24B-2
Promulgation of rules.
38-24B-3
Pests as public nuisances--Permitting existence of pests prohibited--Distributing
infested plant products prohibited--Violation as misdemeanor.
38-24B-4
Misrepresentation of nursery stock and plants offered for distribution--Violation as
misdemeanor.
38-24B-5
License required to sell or distribute nursery stock--Violation as misdemeanor.
38-24B-6
Application for license.
38-24B-7
Issuance of license--Annual fee.
38-24B-7.1
Certificate of inspection_Fee.
38-24B-8
Separate certificate for each sale location--Display--Violation as misdemeanor.
38-24B-9
License for out-of-state nurseryman--Fee--Waiver.
38-24B-10
Inspection and certification sales by nonprofit organizations--Violations as
misdemeanors.
38-24B-11
Certain applicants prohibited from receiving license or certificate of inspection.
38-24B-12
Growers and dealers--Certificate of inspection--Fees.
38-24B-13
Revocation of license--Hearing--Notice--Temporary cease and desist order.
38-24B-14
Term of license.
38-24B-15
Importation of plants--Certificate or copy to be attached--Violation as misdemeanor.
38-24B-16
Accepting plants for shipment without certificate prohibited--Carrier to report
imported plants without indicia of inspection--Quarantine--Disposition--Violation
as misdemeanor.
38-24B-17
Inspection of nurseries, places of possible pest infestation and nursery stock--Hindering as misdemeanor.
38-24B-18
Withholding certificate where pests discovered--Prohibiting distribution of infested
or defective stock.
38-24B-19
Finding of pest infestation--Notice--Orders to prevent spread and to treat or destroy
plant material--Notice of orders--Violation as misdemeanor.
38-24B-20
Treatment or destruction by secretary on failure of owner--Strict liability for costs--Assessment, collection, and disposition.
38-24B-21
Damages for loss of infested or defective stock prohibited.
38-24B-22
Seller to furnish documents showing point of origin of stock--Violation as
misdemeanor.
38-24B-23
Seller of infested stock to furnish names and addresses of buyers--Violation as
misdemeanor.
38-24B-24
Use of information.
38-24B-25
Agreements for certification of out-of-state and foreign nurserymen.
38-24B-26
Shipments of stock received from foreign country--Notice--Quarantine.
38-24B-27, 38-24B-28. Repealed.
38-24B-29
Violation of chapter--Revocation of license--Liability for damages.
38-24B-30
Nursery fund established--Purpose--Appropriations.
38-24B-1. Definitions.
Terms, as used in this chapter, mean:
(1) "Annual plants," ornamental or vegetable plants which are commonly grown in movable containers and transplanted to out of doors locations and which do not live for more than one growing season;
(2) "Dealer," any person who is not a resident nurseryman:
(a) Who buys nursery stock for the purpose of reselling or reshipping;
(b) Who makes landscape plans using nursery stock and negotiates in the purchase of nursery stock for clients; or
(c) Who contracts to furnish and plant nursery stock;
(3) "Decorative plants," indoor plants which are commonly grown and sold in movable containers, and which are not adapted for cultivation out of doors because of climatic conditions and natural peculiarities of habit or growth and because of the purpose of their cultivation;
(4) "Department," the State Department of Agriculture and Natural Resources;
(5) "Nursery," any grounds or premises on which nursery stock is being grown, fumigated, packed, displayed, or stored, if such stock is or will either be sold or offered for sale or distribution;
(6) "Nurseryman," any person who owns, leases, manages, or is in charge of a nursery;
(7) "Nursery stock," trees, shrubs, or other plants having a persistent woody stem; all herbaceous perennials; and parts of either of those which are capable of propagation, except for seeds, true bulbs, rhizomes, corms, and tubers while in a dormant condition;
(8) "Pest," any animal, plant, insect, infectious transmissible or contagious disease, or other organism which is or may be dangerous or detrimental to the plant industry of the state;
(9) "Regulated pest," any pest which the secretary determines is sufficiently detrimental to the plant industry of the state to warrant control or eradication measures;
(10) "Related plant products," seed, true bulbs, rhizomes, corms, roots, and tubers of nursery stock while in a dormant condition and nonviable plant to include forced blooming plants and Christmas trees;
(11) "Resident nurseryman," any nurseryman in this state who grows all or a portion of the nursery stock that the nurseryman sells or distributes;
(12) "Secretary," the state secretary of agriculture and natural resources;
(13) "Sod," grassy surface soil held together by matted roots of grass cultivars, mixtures, or blends of grass cultivars and used in residential and commercial landscape;
(14) "Viable," capable of germination or living and developing under normal growing conditions into a plant which would be typical in height, spread, caliper, dimension, condition, quality, and age for a plant of that species.
Source: SL 1985, ch 313, § 1; SL 1986, ch 335, §§ 1, 2; SL 2001, ch 215, § 26; SL 2017, ch 181, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24B-2. Promulgation of rules.
The secretary of agriculture and natural resources may promulgate rules pursuant to the provisions of chapter 1-26 to establish:
(1) Standards for inspection and sampling;
(2) Standards for inspection performance;
(3) Forms for requests for inspection;
(4) Procedures for issuing and revoking certificates of inspections;
(5) Restrictions for the movement of plants and hosts;
(6) Treatment provisions of infested hosts or premises;
(7) Provisions for issuance of special phytosanitary certificates;
(8) Provisions for quarantine or destruction of pests and hosts;
(9) Reporting requirements on suspected plants; and
(10) Criteria for the implementation and administration of the fee schedule contained in § 38-24B-7.
Source: SL 1985, ch 313, § 2; SL 1986, ch 326, § 57; SL 2009, ch 197, § 5; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24B-3. Pests as public nuisances--Permitting existence of pests prohibited--Distributing infested plant products prohibited--Violation as misdemeanor.
A pest is declared to be a public nuisance. No person may knowingly permit pests to exist in or on his premises. No person may sell, offer for sale, or distribute any nursery stock, decorative plants, annual plants, sod, or related plant products infested with a pest. A violation of this section is a Class 1 misdemeanor.
Source: SL 1985, ch 313, § 3; SL 1986, ch 335, § 3.
38-24B-4. Misrepresentation of nursery stock and plants offered for distribution--Violation as misdemeanor.
No person may intentionally misrepresent the grade, character, variety, hardiness, or quality of nursery stock in a nursery or of nursery stock, decorative plants, annual plants, sod, or related plant products offered for sale or distribution. A violation of this section is a Class 1 misdemeanor.
Source: SL 1985, ch 313, § 4; SL 1986, ch 335, § 4.
38-24B-5. License required to sell or distribute nursery stock--Violation as misdemeanor.
No person may sell, offer for sale, or distribute any nursery stock until the person has obtained a license from the secretary. A violation of this section is a Class 2 misdemeanor.
Source: SL 1985, ch 313, § 5; SL 2016, ch 202, § 3.
38-24B-6. Application for license.
Any nurseryman desiring to sell or ship nursery stock in the state shall make application before the first day of March to the department for a license.
Source: SL 1985, ch 313, § 6; SL 2016, ch 202, § 4.
38-24B-7. Issuance of license--Annual fee.
The department shall issue a license to any nurseryman, operating as a resident nurseryman or dealer, who completes the application provided by the department and pays the license fee. The annual fee for the license is as follows:
(1) Resident nurseryman: two hundred dollars. However, the fee for a resident nurseryman with less than five thousand dollars in gross sales on nursery stock is forty-two dollars and fifty cents;
(2) Nursery stock dealer with less than five thousand dollars annual gross sales of nursery stock: seventy dollars;
(3) Nursery stock dealer with more than five thousand but less than twenty thousand dollars annual gross sales of nursery stock: one hundred fifteen dollars; or
(4) Nursery stock dealer with more than twenty thousand dollars annual gross sales of nursery stock: two hundred dollars.
Source: SL 1985, ch 313, § 7; SL 2001, ch 215, § 27; SL 2009, ch 197, § 2; SL 2016, ch 202, § 1; SL 2017, ch 181, § 2.
38-24B-7.1. Certificate of inspection--Fee.
The department shall issue a certificate of inspection to any nurseryman or dealer whose nursery stock has been officially inspected and found to be viable and free from pests. The inspection fee shall be two hundred and fifteen dollars per inspection.
Source: SL 2016, ch 202, § 2; SL 2017, ch 181, § 3.
38-24B-8. Separate license for each sale location--Display--Violation as misdemeanor.
A separate license shall be obtained from the department for each location before selling, offering, or exposing nursery stock for sale. The license shall be displayed in a prominent manner wherever nursery stock is offered for sale. A violation of this section is a Class 2 misdemeanor.
Source: SL 1985, ch 313, § 8; SL 2016, ch 202, § 5.
38-24B-9. License for out-of-state nurseryman--Fee--Waiver.
Any nurseryman whose location is outside the state may obtain a license to sell nursery stock within the state by filing a certified copy of the official inspection certificate and paying a two hundred fifty dollar fee to the secretary of agriculture and natural resources. The secretary may waive the payment of the fee if the applicant's state does not require a fee by South Dakota applicants for a like certificate in that state.
Source: SL 1985, ch 313, § 9; SL 2001, ch 215, § 28; SL 2009, ch 197, § 3; SL 2017, ch 181, § 4; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24B-10. Inspection and certification sales by nonprofit organizations--Violations as misdemeanors.
A sale or trade of nursery stock may be made by garden clubs and other nonprofit organizations only if notification of the time and place of the sale is given to the Department of Agriculture and Natural Resources at least ten days prior to the time of the intended sale. The notice shall be in writing and, if, upon receipt of the notice, the department finds the plants free from pests, it may issue a certificate of inspection. This certificate of inspection is issued without fee. A violation of this section is a Class 2 misdemeanor.
Source: SL 1985, ch 313, § 10; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24B-11. Certain applicants prohibited from receiving license or certificate of inspection.
No certificate of inspection or license may be issued to an applicant who purchases nursery stock from an uncertified nursery in this state or from a nonresident nursery or nursery stock dealer whose stock has not been inspected and certified by the regulatory official of the state of origin.
Source: SL 1985, ch 313, § 11; SL 2016, ch 202, § 6.
38-24B-12. Growers and dealers--Certificate of inspection--Fees.
Any grower or dealer of decorative plants, annual plants, sod, or related plant products may apply to the department for a certificate of inspection. The department may issue a certificate of inspection to the person whose decorative plants, annual plants, sod, or related plant products have been officially inspected and found free from pests. The fee for inspection and certification is one hundred forty dollars plus five dollars for each acre of growing field and five dollars for each ten thousand square feet of growing greenhouse.
Source: SL 1985, ch 313, § 12; SL 1986, ch 335, § 5; SL 2001, ch 215, § 29; SL 2009, ch 197, § 4; SL 2016, ch 202, § 7.
38-24B-13. Revocation of license--Hearing--Notice--Temporary cease and desist order.
The secretary may revoke a license for cause following a hearing pursuant to chapter 1-26. The secretary may issue a temporary cease and desist order pending the hearing. At least ten days notice shall be given prior to conducting a hearing pursuant to this section.
Source: SL 1985, ch 313, § 13; SL 2016, ch 202, § 8.
38-24B-14. Term of license.
A license issued pursuant to the provisions of this chapter is in effect for a period not to exceed one year and expires on December thirty-first of the year issued.
Source: SL 1985, ch 313, § 14; SL 2001, ch 215, § 37; SL 2016, ch 202, § 9; SL 2017, ch 181, § 5.
38-24B-15. Importation of plants--Certificate or copy to be attached--Violation as misdemeanor.
Any person who engages in the selling and shipping of nursery stock, decorative plants, annual plants, or sod into this state or the selling and shipping of nursery stock out of this state shall attach to the bill of lading or to the outside of each package, box, bale, or carload lot so shipped or delivered, a tag or poster on which appears an exact copy of his valid certification of inspection. The use of tags or posters bearing an invalid or altered certificate or the misuse of any valid certificate or tag is unlawful. To accommodate multiple shipments, the certificate may be reproduced or an unlike copy, approved by the department, may be used. A violation of this section is a Class 2 misdemeanor.
Source: SL 1985, ch 313, § 15.
38-24B-16. Accepting plants for shipment without certificate prohibited--Carrier to report imported plants without indicia of inspection--Quarantine--Disposition--Violation as misdemeanor.
No person may accept for shipment any nursery stock, decorative plants, annual plants, or sod which is intended for resale or redistribution without a valid certificate affixed to the bill of lading or on the outside of the package, bale, box, or car containing the shipment showing that the contents have been inspected by an official state or federal inspector. In case any nursery stock, decorative plants, annual plants, or sod which is intended for resale or redistribution is shipped into this state from another state or country, without a valid certificate of inspection the fact shall be promptly reported to the Department of Agriculture and Natural Resources by the person carrying that shipment. The secretary of agriculture and natural resources may quarantine such shipment and order it held for inspection. Following inspection, the secretary may direct that the shipment be removed from the state or destroyed pursuant to this chapter. A violation of this section is a Class 2 misdemeanor.
Source: SL 1985, ch 313, § 16; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24B-17. Inspection of nurseries, places of possible pest infestation and nursery stock--Hindering as misdemeanor.
The Department of Agriculture and Natural Resources may annually inspect all nurseries in this state. The department may inspect any field, orchard, garden, plantation, park, cemetery, packing ground, building, cellar, and all places, public or private, which may be infested or infected with a pest. The department may inspect or reinspect at any time or place any nursery stock shipped in or into this state and treat it as provided in this chapter. No person may hinder, obstruct, or defeat the inspection by misrepresentation or concealment of facts or conditions or make a false declaration of acreage or cause any concealment of nursery stock from inspection. Any person hindering, obstructing, or defeating an inspection required by this section is guilty of a Class 1 misdemeanor.
Source: SL 1985, ch 313, § 17; SL 1986, ch 335, § 6; SL 2015, ch 203, § 21; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24B-18. Withholding certificate where pests discovered--Prohibiting distribution of infested or defective stock.
If any pests are discovered in any nursery, the certificate of inspection shall be withheld until the pest has been abated, as provided in this chapter. The secretary of agriculture and natural resources may prohibit the sale or distribution of any nursery stock if upon inspection it is found to be so infested by pests or to be nonviable or damaged or desiccated so as to be incapable of normal growth if given reasonable care. The secretary may order it removed from sale, treated, or destroyed.
Source: SL 1985, ch 313, § 18; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24B-19. Finding of pest infestation--Notice--Orders to prevent spread and to treat or destroy plant material--Notice of orders--Violation as misdemeanor.
If the Department of Agriculture and Natural Resources finds on examination any nursery, nursery stock, orchard, small-fruit plantation, park, cemetery, or any private or public premises infested with pests, he shall notify in writing the owner or person having charge of such premises, to that effect. The department may prohibit and prevent the removal, shipment, or transportation of plant material and any other material from any private or public property for such periods and under such conditions as necessary in order to prevent the further spread of the infestation or infection. During the existence of such order no person may remove or ship any such material, except by special permission or direction of the secretary. The owner or person having charge of the premises shall within reasonable time after such notice treat them as the secretary of agriculture and natural resources directs or cause the removal and destruction of such plant material, if incapable of successful treatment. The secretary may also order treatment of any fields, premises, building, packing materials, or vehicles used in transporting infected material. Any notice or order issued by the secretary shall be delivered by personal service to the owner or person having charge of the premises or by certified mail to the last known address of the owner. A violation of this section is a Class 1 misdemeanor.
Source: SL 1985, ch 313, § 19; SL 1986, ch 335, § 7; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24B-20. Treatment or destruction by secretary on failure of owner--Strict liability for costs--Assessment, collection, and disposition.
If the owner or person in charge of any premises refuses or neglects to comply with the orders of the secretary of agriculture and natural resources, within a reasonable period of time and after receiving a written notice, the secretary may proceed to treat or destroy the infested or infected plants or plant material, fields, premises, buildings, packing materials, or vehicles used in transporting such material. The owner or person in charge is strictly liable to the secretary for the actual and necessary expense associated therewith. That liability may be assessed against the premises and collected as taxes are collected. The department shall keep an accurate account in itemized form and certify it to the county auditor of the county where the land is situated. The county auditor shall place that amount upon the next tax list to be prepared in the county, in a separate column to be headed "For the destruction of diseased plants." The county treasurer shall remit all moneys collected under this chapter to the state treasurer who shall deposit it in the general fund. The amount certified shall be collected as other taxes are collected and is subject to all the penalties provided for the nonpayment of taxes, and the entry of such expense upon the tax list is presumptive evidence of the liability of the land to the tax.
Source: SL 1985, ch 313, § 20; SL 1986, ch 335, § 8; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24B-21. Damages for loss of infested or defective stock prohibited.
No damages may be awarded to the owner for the loss of any infested or infected, nonviable, damaged or desiccated nursery stock, decorative plant, annual plant, sod, or related plant products under this chapter.
Source: SL 1985, ch 313, § 21.
38-24B-22. Seller to furnish documents showing point of origin of stock--Violation as misdemeanor.
Any person selling nursery stock, decorative plants, annual plants, sod, or related plant products in this state shall, if requested, furnish the Department of Agriculture and Natural Resources with copies of his order forms, contracts, invoices, and agreements which would verify the point of origin of such nursery stock, decorative plants, annual plants, sod, or related plant products. A violation of this section is a Class 2 misdemeanor.
Source: SL 1985, ch 313, § 22; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24B-23. Seller of infested stock to furnish names and addresses of buyers--Violation as misdemeanor.
Any person offering for sale in this state nursery stock, decorative plant, annual plant, sod, or related plant product that is known to be infested or infected with pests shall furnish the Department of Agriculture and Natural Resources within thirty days of such sale a list of all persons, together with their post office addresses as far as known to him to whom he has sold or delivered such nursery stock, decorative plants, annual plants, sod, or related plant products. A violation of this section is a Class 2 misdemeanor.
Source: SL 1985, ch 313, § 23; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24B-24. Use of information.
The information furnished pursuant to §§ 38-24B-22 and 38-24B-23 is for the sole use of the secretary of agriculture and natural resources in carrying out the provisions of this chapter.
Source: SL 1985, ch 313, § 24; SL 2021, ch 1 (Ex. Ord. 21-3), § 14, eff. Apr. 19, 2021.
38-24B-25. Agreements for certification of out-of-state and foreign nurserymen.
The secretary of agriculture and natural resources may enter into an agreement with any agency of another state or with the United States Department of Agriculture and Natural Resources which is responsible for the inspection and certification of nursery stock, decorative plants, annual plants, sod, or related plant products in lieu of individual certification of out-of-state or foreign nurserymen pursuant to § 38-24B-9. However, no agreement may prohibit the secretary from revoking the certification of an out-of-state or foreign nurseryman pursuant to the provisions of this chapter.
Source: SL 1985, ch 313, § 25; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24B-26. Shipments of stock received from foreign country--Notice--Quarantine.
Any person receiving, directly or indirectly, any shipment of nursery stock from any foreign country shall notify the Department of Agriculture and Natural Resources of the arrival of such shipment, the contents thereof, and the name of the consignor and shall hold the shipment unopened until inspected or released by the department. The nursery stock may be required to be grown under the provision of a post-entry quarantine agreement as determined by the department. If any infested or infected stock is discovered in the shipment, the shipment is subject to the provisions of this chapter.
Source: SL 1985, ch 313, § 26; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-24B-29. Violation of chapter--Revocation of license--Liability for damages.
If a nurseryman violates the provisions of this chapter, the nurseryman's license may be cancelled or revoked pursuant to chapter 1-26. In addition, any person is liable in a civil action for all damage that is occasioned or caused by a violation of this chapter.
Source: SL 1985, ch 313, § 29; SL 2016, ch 202, § 10.
38-24B-30. Nursery fund established--Purpose--Appropriations.
Fees collected pursuant to this chapter shall be deposited with the state treasurer in a special revenue fund known as the nursery fund. This fund shall consist of moneys from public and private sources including legislative appropriations, federal grants, gifts, and the fees received pursuant to this chapter. The fund shall be maintained separately and be administered by the department in order to defray the expenses of all activities associated with administering the nursery program. Expenditures from the fund shall be appropriated through the normal budget process. Unexpended funds and interest shall remain in the fund until appropriated by the Legislature.
Source: SL 2001, ch 215, § 30.
CHAPTER 38-27
OILSEEDS COUNCIL AND ASSESSMENTS
38-27-1 Definition of terms.
38-27-2 Oilseeds council established--Composition.
38-27-3 Necessity, purposes, and objectives for council.
38-27-4 Terms of members--Vacancies.
38-27-5 Officers--Quorum--Meetings.
38-27-6 Compensation of members.
38-27-7 Oilseeds fund--Expenditures.
38-27-8 Powers of council.
38-27-8.1 Promulgation of rules.
38-27-9 Supplementary nature of chapter--Agriculture and natural resources department and other agency functions not limited.
38-27-10 38-27-10. Repealed by SL 1989, ch 346, § 9
38-27-11 Assessment on sunflowers, safflowers, canola, and flax grown or sold--Rate.
38-27-12 Collection of assessment by deduction from purchase price.
38-27-13 Filing by first purchaser required.
38-27-14 Records and reports--Remittance of assessment.
38-27-15 Enforcing collection of assessment.
38-27-16 Refunds--Applications.
38-27-17 Council to provide refund information.
38-27-18 38-27-18. Repealed by SL 2010, ch 201, § 8.
38-27-19 Council may contract with Public Utilities Commission to inspect assessment and checkoff records.
38-27-1. Definition of terms.
Terms used in this chapter mean:
(1) "Council," the South Dakota Oilseeds Council;
(2) "First purchaser," any person who initially places sunflowers, safflowers, canola, or flax, whether as an owner, agent, or otherwise, into the channels of trade and commerce, or who is engaged in the processing of sunflowers, safflowers, canola, or flax into any form;
(3) "Grower," any person who plants, raises, and harvests sunflowers, safflowers, canola, or flax from more than ten acres;
(4) "Hundredweight," a one hundred pound unit or a combination of packages making a one hundred pound unit or any one hundred pound shipment of sunflowers, safflowers, or canola based on invoices or bills of lading records;
(5) "Oilseeds," any variety of sunflowers, safflowers, canola (rapeseed), or flax marketed or harvested within the state;
(6) "Participating grower," a grower who has not requested a refund from the payment of assessments on sunflower, safflower, canola, or flax production under this chapter in the last three calendar years, including the current calendar year;
(7) "Secretary," the secretary of the South Dakota Department of Agriculture and Natural Resources.
Source: SL 1980, ch 273, § 2; SL 1985, ch 314, § 1; SL 1989, ch 346, § 1; SL 2010, ch 201, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-27-2. Oilseeds council established--Composition.
There is hereby established a South Dakota Oilseeds Council. The council is composed of seven members who shall be participating growers of oilseeds. One member shall be a participating grower of safflowers, canola, or flax. All members shall be appointed by the secretary of agriculture and natural resources. One member shall reside west of the Missouri River. The secretary of agriculture and natural resources is an ex officio, nonvoting member.
Source: SL 1980, ch 273, § 3; SL 1982, ch 17, § 30; SL 1989, ch 346, § 2; SL 2010, ch 201, § 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-27-3. Necessity, purposes, and objectives for council.
The production, development, marketing, and promotion of sunflowers, safflowers, canola, and flax in South Dakota is important to the general welfare of the people of South Dakota. It is in the public interest that better methods of production, processing, and marketing of sunflowers, safflowers, canola, and flax be developed and that advertising and promoting of sunflowers, safflowers, canola, and flax grown in South Dakota be fostered, encouraged, developed, and improved so the sunflower, safflower, canola, and flax industries within the state, the people directly or indirectly employed by these industries and the people of South Dakota should be benefited thereby, the accomplishment of which requires and demands the establishment of a South Dakota Oilseeds Council for the purposes and with the objectives of contributing to the stabilization and improvement of the agricultural economy of this state.
Source: SL 1980, ch 273, § 1; SL 1989, ch 346, § 3.
38-27-4. Terms of members--Vacancies.
The term of the members shall be for a period of four years, provided that the initial appointments shall be for staggered terms. If a member ceases to be a participating grower, the secretary of agriculture and natural resources shall declare the member's office vacant, and the secretary shall appoint a successor for the balance of the term of the office vacated.
Source: SL 1980, ch 273, § 4; SL 2010, ch 201, § 3; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-27-5. Officers--Quorum--Meetings.
The oilseeds council shall annually elect a chairman and vice-chairman. A majority of voting members constitutes a quorum. All meetings of the council shall be called by the chairman except special meetings may be called by five members of the council. The council shall adopt procedures for the calling of special meetings.
Source: SL 1980, ch 273, § 5; SL 1989, ch 346, § 4.
38-27-6. Compensation of members.
Compensation for the oilseeds council shall be paid pursuant to § 4-7-10.4. The compensation of the secretary shall be paid by funds of the Department of Agriculture and Natural Resources.
Source: SL 1980, ch 273, § 6; SL 1982, ch 17, § 31; SL 1989, ch 346, § 5; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-27-7. Oilseeds fund--Expenditures.
Funds collected pursuant to this chapter shall be deposited with the state treasurer in a special fund known as the "oilseeds fund." Any funds remaining in the "sunflower fund" shall be transferred to the "oilseeds fund" upon implementation of the new fund. Expenditures of these funds shall be made in accordance with the provisions of chapter 4-7.
Source: SL 1980, ch 273, § 7; SL 1989, ch 346, § 6.
38-27-8. Powers of council.
In the administration of this chapter, the oilseeds council may:
(1) Contract and cooperate with any person or with any governmental department or agency for research, education, and transportation;
(2) Expend the funds collected pursuant to this chapter and appropriated for its administration;
(3) Appoint, discharge, fix compensation for, and prescribe the duties of personnel as necessary, subject to approval of the secretary;
(4) Accept donations of funds, property, services, or other assistance from public or private sources for the purpose of furthering the objectives of the council.
Source: SL 1980, ch 273, § 8; SL 1989, ch 346, § 7.
38-27-8.1. Promulgation of rules.
The council may promulgate rules pursuant to chapter 1-26 concerning:
(1) The procedures for obtaining a declaratory ruling;
(2) The procedures for assessments collected for sunflowers, safflowers, canola, or flax grown or sold to a first purchaser;
(3) The procedures for obtaining a refund of the assessment;
(4) The procedures for collecting delinquent assessments and assessing penalties; and
(5) The record-keeping and reporting requirements of first purchasers.
Source: SL 1986, ch 326, § 58; SL 1989, ch 346, § 8.
38-27-9. Supplementary nature of chapter--Agriculture and natural resources department and other agency functions not limited.
This chapter does not abrogate or limit in any way the rights, powers, duties, and functions of the Department of Agriculture and Natural Resources or any other agency of the state, but is supplementary to and in aid and cooperation with such rights, powers, duties, and functions.
Source: SL 1980, ch 273, § 1; SL 2010, ch 201, § 4; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-27-11. Assessment on sunflowers, safflowers, canola, and flax grown or sold--Rate.
An assessment at the rate of four cents per hundredweight shall be levied and imposed upon all sunflowers, safflowers, and canola grown in the state or sold to a first purchaser, and an assessment at the rate of one cent per bushel shall be levied and imposed upon all flax grown in the state or sold to a first purchaser. The assessment is due upon any identifiable lot or quantity of sunflowers, safflowers, canola, or flax.
Source: SL 1980, ch 273, § 9; SL 1983, ch 284; SL 1985, ch 314, § 2; SL 1989, ch 346, § 10; SL 1998, ch 249, § 1; SL 2010, ch 201, § 5.
38-27-12. Collection of assessment by deduction from purchase price.
Any first purchaser of sunflowers, safflowers, canola, or flax shall collect the assessment imposed by this chapter by charging and collecting from the seller the assessment at the prescribed rate by deducting the assessment from the purchase price of all sunflowers, safflowers, canola, or flax subject to the assessment and purchased by the first purchaser.
Source: SL 1980, ch 273, § 10; SL 1985, ch 314, § 3; SL 1989, ch 346, § 11.
38-27-13. Filing by first purchaser required.
Any first purchaser of sunflowers, safflowers, canola, or flax shall file an application or affidavit with the oilseeds council on forms prescribed and furnished by the council. The application or affidavit shall contain the name under which the first purchaser is transacting business within the state, the first purchaser's place of business, and the location of loading places of the first purchaser.
Source: SL 1980, ch 273, § 11; SL 1985, ch 314, § 4; SL 1989, ch 346, § 12; SL 2010, ch 201, § 6.
38-27-14. Records and reports--Remittance of assessment.
Any first purchaser shall keep a permanent record of all purchases by the first purchaser of raw sunflowers, safflowers, canola, or flax, which may be examined by the oilseeds council at any reasonable time. The first purchaser shall report to the council stating the quantity of sunflowers, safflowers, canola, or flax received by the first purchaser. The report and remittance of the assessment shall be made at the times and in the manner prescribed by the council pursuant to rules promulgated pursuant to chapter 1-26.
Source: SL 1980, ch 273, § 12; SL 1985, ch 314, § 5; SL 1989, ch 346, § 13; SL 2010, ch 201, § 7.
38-27-15. Enforcing collection of assessment.
If any first purchaser fails to pay the assessment provided in this chapter the oilseeds council may enforce collection in any appropriate court within this state.
Source: SL 1980, ch 273, § 16; SL 1985, ch 314, § 6; SL 1989, ch 346, § 14.
38-27-16. Refunds--Applications.
Any grower subject to the assessment provided in this chapter, within sixty days following the assessment, may make application to the oilseeds council for a refund of the assessment. Upon return of the refund application accompanied by a record of the assessment by the first purchaser, the grower shall, within sixty days, be refunded the net amount of the assessment collected. However, a grower, for any reason, having paid the assessment more than once on the same sunflowers, safflowers, canola, or flax, upon furnishing proof of this to the council, is entitled to a refund of the overpayment.
Source: SL 1980, ch 273, § 13; SL 1985, ch 314, § 7; SL 1986, ch 336; SL 1989, ch 346, § 15; SL 1990, ch 322.
38-27-17. Council to provide refund information.
The oilseeds council, to inform the grower, shall develop and disseminate information and instructions relating to the purpose of the oilseeds assessment and manner in which refunds may be claimed, and to this extent shall cooperate with governmental agencies, state and federal, and private businesses engaged in the purchase of sunflowers, safflowers, canola, or flax.
Source: SL 1980, ch 273, § 14; SL 1989, ch 346, § 16.
38-27-19. Council may contract with Public Utilities Commission to inspect assessment and checkoff records.
The council may contract with the Public Utilities Commission to inspect the records of licensed grain buyers to determine compliance with the assessment and checkoff requirements of this chapter. The contract shall cover the grain buyers to be inspected and the amount the council shall reimburse the Public Utilities Commission for the inspections.
Source: SL 1996, ch 245, § 2; SL 2009, ch 196, § 2.
38-29-1
Definitions.
38-29-2
Soybean Research and Promotion Council--Establishment--Members--Terms.
38-29-3
Election of members.
38-29-4
Vacancies--Appointments to fill.
38-29-5
Officers--Quorum--Meetings.
38-29-6
Checkoff fees deposited into special fund--Appropriation--Expenditures.
38-29-7
Powers of council.
38-29-7.1
Promulgation of rules.
38-29-8
Assessment on soybeans grown in state or sold to first purchaser within state--Rate--Exemption for organic soybeans.
38-29-9
Collection of assessment.
38-29-9.1
Assessment conditioned on repeal of National Soybean Promotion, Research, and
Consumer Information Act.
38-29-10
Application by first purchaser required.
38-29-11
Records and reports--Remittance of assessment.
38-29-11.1
Enforcement against first purchaser failing to remit assessments.
38-29-12
Repealed.
38-29-13
Information and instructions to be disseminated by council.
38-29-14
Council may contract with Public Utilities Commission to inspect assessment and
checkoff records.
38-29-1. Definitions.
Terms used in this chapter, unless the context plainly otherwise requires, mean:
(1) "Council," the South Dakota Soybean Research and Promotion Council;
(2) "First purchaser," any person who initially places soybeans, whether as an owner or agent, into the channels of trade and commerce, or who is engaged in the processing of soybeans into any form. However, a grower who sells unharvested soybeans, or delivers soybeans from the farm on which they are produced to storage facilities, packing shed, or processing plant, within the state, is not a first purchaser;
(3) "Grower," any person who plants, raises, and harvests soybeans from more than ten acres;
(4) "Participating grower," a grower who has not requested a refund from the payment of assessments on soybean production under this chapter for a particular year and any person who owns or operates an agricultural producing or growing facility for soybeans and shares in the profits and risks of loss from such operation, and who produces soybeans in South Dakota during the current or preceding marketing year;
(5) "Secretary," the secretary of the South Dakota Department of Agriculture and Natural Resources;
(6) "Soybean," all varieties of soybeans marketed or harvested within the state;
(7) "Net market price," the sale price received by a producer for soybeans after adjustments for any premium or discount based on grading or quality factors.
Source: SL 1984, ch 267, § 1; SL 1985, ch 314, § 8; SL 2007, ch 229, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-29-2. Soybean Research and Promotion Council--Establishment--Members--Terms.
There is hereby established a South Dakota Soybean Research and Promotion Council. The council shall be composed of at least five but no more than nine members who shall be participating growers. The initial members shall be appointed by the secretary of agriculture and natural resources. Any additional members authorized pursuant to this section shall be appointed by the secretary of agriculture and natural resources. The terms of members shall be three years; the initial appointments shall be for staggered terms. However, the secretary shall be an ex officio, nonvoting member of the council.
Source: SL 1984, ch 267, § 2; SL 1992, ch 285, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-29-3. Election of members.
Successors to the initial members and to any additional members appointed pursuant to § 38-29-2 shall be elected by the participating growers under rules promulgated pursuant to chapter 1-26 by the secretary of agriculture and natural resources.
Source: SL 1984, ch 267, § 3; SL 1992, ch 285, § 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-29-4. Vacancies--Appointments to fill.
If a member of the council ceases to be a participating grower, dies or resigns from office prior to the expiration of his term, the secretary of agriculture and natural resources shall appoint a successor for the balance of the term of office vacated.
Source: SL 1984, ch 267, § 4; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-29-5. Officers--Quorum--Meetings.
The soybean research and promotion council shall annually elect a chairman and vice-chairman. A majority of voting members shall constitute a quorum. All meetings of the council shall be called by the chairman except special meetings may be called by three members of the council. The council shall adopt procedures for the calling of special meetings.
Source: SL 1984, ch 267, § 5.
38-29-6. Checkoff fees deposited into special fund--Appropriation--Expenditures.
Moneys collected from checkoff fees shall be deposited in a special revolving fund created in the state treasury and shall be continuously appropriated to the soybean research and promotion council. Expenditures of these funds shall be made in accordance with the provisions of Title 4.
Source: SL 1984, ch 267, § 6.
38-29-7. Powers of council.
The Soybean Research and Promotion Council may:
(1) Enter into contracts, including loans and grants, and cooperate with any person, any local, state, or national organization, whether public or private, or with any governmental department or agency for the discovery, promotion, development, and expansion of domestic and export markets and industries and for research, education, and transportation;
(2) Expend the funds collected pursuant to this chapter and appropriated for its administration;
(3) Appoint, bond, employ, discharge, fix compensation for, and prescribe the duties of such personnel as it deems necessary;
(4) Accept donations of funds, property, services, or other assistance from public or private sources for the purpose of furthering the objectives of the council;
(5) Lease, purchase, own, maintain, operate, and dispose of equipment and supplies necessary to carry out the provisions of this chapter;
(6) Formulate policies and programs regarding the discovery, promotion, and development of markets and industries for the use of soybeans grown within the state.
Source: SL 1984, ch 267, § 7; SL 1995, ch 233, § 1; SL 2007, ch 229, § 2.
38-29-7.1. Promulgation of rules.
The council may promulgate rules pursuant to chapter 1-26 concerning:
(1) The procedures for obtaining a declaratory ruling;
(2) The procedures for assessments collected for soybeans grown or sold to a first purchaser;
(3) The procedures for obtaining a refund of the assessment;
(4) The procedures for collecting delinquent assessments and assessing penalties;
(5) The record-keeping and reporting requirements of first purchasers; and
(6) The requirements governing grants and loans made pursuant to § 38-29-7, including eligibility requirements and requirements for application, awards, and administration.
Source: SL 1986, ch 326, § 59; SL 1995, ch 233, § 2.
38-29-8. Assessment on soybeans grown in state or sold to first purchaser within state--Rate--Exemption for organic soybeans.
An assessment at the rate of one-half of one percent of the value of the net market price is imposed by the soybean research and promotion council upon all soybeans grown in the state or sold to a first purchaser within the state. This assessment is due upon any identifiable lot or quantity of soybeans. Any soybean producer operating under a national organic program approved by the United States Department of Agriculture who produces and markets only commodities that may be labeled, one hundred percent organic, is eligible for exemption from paying the soybean assessment.
Source: SL 1984, ch 267, § 8; SL 1985, ch 314, § 9; SL 1985, ch 315; SL 2007, ch 229, § 3.
38-29-9. Collection of assessment.
Any first purchaser of soybeans shall collect the assessment imposed by this chapter by deducting the assessment from the purchase price of all soybeans subject to the assessment and purchased by the first purchaser.
Source: SL 1984, ch 267, § 9; SL 1985, ch 314, § 10.
38-29-9.1. Assessment conditioned on repeal of National Soybean Promotion, Research, and Consumer Information Act.
The assessment authorized pursuant to §§ 38-29-8 and 38-29-9 may be imposed and collected only if the National Soybean Promotion, Research, and Consumer Information Act, 7 U.S.C. §§ 6301-6311, as amended to January 1, 2007, is repealed.
Source: SL 2007, ch 229, § 6.
38-29-10. Application by first purchaser required.
Any first purchaser of soybeans shall file an application with the Soybean Research and Promotion Council on forms prescribed and furnished by the council which shall contain the name under which the first purchaser is transacting business within the state, his place of business and the location of loading places of the first purchaser.
Source: SL 1984, ch 267, § 10; SL 1985, ch 314, § 11.
38-29-11. Records and reports--Remittance of assessment.
Any first purchaser shall keep as a part of his permanent records a record of all purchases of raw soybeans, which may be examined by the soybean research and promotion council at any reasonable time. Every first purchaser shall report to the council stating the quantity of soybeans received by him. The report and remittance of the assessment shall be made at the times and in the manner prescribed by the council pursuant to administrative rules promulgated pursuant to chapter 1-26.
Source: SL 1984, ch 267, § 11; SL 1985, ch 314, § 12.
38-29-11.1. Enforcement against first purchaser failing to remit assessments.
If a first purchaser fails to remit the assessment provided in this chapter, the soybean council may enforce collection in any appropriate court within this state.
Source: SL 1985, ch 314, § 14.
38-29-13. Information and instructions to be disseminated by council.
The Soybean Research and Promotion Council, to inform the grower, shall develop and disseminate information and instructions relating to the purpose of the soybean assessment and to this extent shall cooperate with governmental agencies, state and federal, and private businesses engaged in the purchase of soybeans.
Source: SL 1984, ch 267, § 13; SL 2007, ch 229, § 5.
38-29-14. Council may contract with Public Utilities Commission to inspect assessment and checkoff records.
The council may contract with the Public Utilities Commission to inspect the records of licensed grain buyers to determine compliance with the assessment and checkoff requirements of this chapter. The contract shall cover the grain buyers to be inspected and the amount the council shall reimburse the Public Utilities Commission for the inspections.
Source: SL 1996, ch 245, § 3; SL 2009, ch 196, § 3.
38-31-1 to 38-31-9. Repealed .
38-32-1
Definitions.
38-32-2
Corn utilization council established--Composition--Election--Secretary.
38-32-3
Repealed.
38-32-3.1
Election procedure when director's term is to expire--Polling location--No election
if only one nominee.
38-32-3.2
Absentee voting.
38-32-3.3
Voting eligibility of participating growers--Affidavit.
38-32-4, 38-32-5. Repealed.
38-32-6
Notice of subsequent elections.
38-32-6.1
Notice of pending expiration of term--Time--Required information.
38-32-7
Receipt of highest number of votes by winning candidate--Terms of directors.
38-32-8
Administration of subsequent election--Election judges--Ballot security--Certification.
38-32-9
Districts from which directors elected.
38-32-9.1
Assignment of directors during transition.
38-32-10
Vacancies.
38-32-11
President and officers--Quorum--Calling of meetings.
38-32-12
Deposit of funds--Appropriation--Expenditures.
38-32-13
Powers of council.
38-32-14
Promulgation of rules.
38-32-15
Assessment on corn marketed to first purchaser within state.
38-32-16
Deduction of assessment from purchase price.
38-32-17
Application to be filed by first purchaser--Contents.
38-32-18
First purchaser to keep record of corn purchases--Examination by council--Report to
council and remittance of assessment--Rules.
38-32-19
Enforcement of collection.
38-32-20
Refund to grower--Application--When refund made.
38-32-21
Development and dissemination of information by council--Cooperation with
agencies and businesses.
38-32-22
Compensation and expenses for corn utilization council.
38-32-23
Nomination of directors by petition--Certification--Ballot position.
38-32-24
Council may contract with Public Utilities Commission to inspect assessment and
checkoff records.
38-32-1. Definitions.
Terms used in this chapter mean:
(1) "Bushel," fifty-six pounds of corn by weight;
(2) "Corn," all varieties of corn marketed within the state except sweet corn, popcorn, or seed corn;
(3) "Council," the South Dakota Corn Utilization Council;
(4) "First purchaser," any person who buys, accepts for shipment, or otherwise acquires corn from a grower, except any mortgagee, pledgee, lienor, or other person having a claim against a grower if actual or constructive possession of such corn is taken as partial payment or in satisfaction of such mortgage, pledge, lien, or claim. However, first purchaser does not include sales between growers not for resale;
(5) "Grower," any person who plants, raises, and harvests corn;
(6) "Participating grower," a grower who has not requested a refund from the payment of assessments on corn production under this chapter for a particular year, and any person who owns or operates an agricultural producing or growing facility for corn and shares in the profits and risks of loss from such operation, and who produces corn in South Dakota during the current or preceding marketing year;
(7) "Secretary," the secretary of the South Dakota Department of Agriculture and Natural Resources.
Source: SL 1988, ch 318, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-32-2. Corn utilization council established--Composition--Election--Secretary.
There is hereby established a South Dakota Corn Utilization Council. The council shall be composed of nine directors who shall be participating growers. The directors shall be elected by participating growers. The secretary shall be an ex officio, nonvoting director of the council.
Source: SL 1988, ch 318, § 2; SL 1991, ch 328, § 1; SL 2010, ch 202, § 1.
38-32-3.1. Election procedure when director's term is to expire--Polling location--No election if only one nominee.
An election shall be held in each district in which a director's term is to expire. The election date and time shall be determined by the council but shall be between January first to February fifteenth, inclusive, closest to the pending vacancy's expiration date. The election shall be by official ballot, which shall be made available at the polling location. The council shall designate at least one polling location in each county within the district. The principal polling location in the county shall be at the county office of the Cooperative Extension Service of South Dakota State University, if available, or at a place specified by the council. If only one candidate is nominated in a district, no election is required in the district, and the council shall declare the nominee as elected and shall provide the nominee with a certificate of election pursuant to § 38-32-8.
Source: SL 1991, ch 328, § 5.
38-32-3.2. Absentee voting.
If voting at the designated time and place would cause a hardship on any eligible voter, the council shall allow for absentee voting on forms, and in a manner, prescribed in rule by the council. Absentee ballots shall be returned either to the council office no later than five calendar days prior to the day of the election or to the polling location prior to the close of the polls. The council shall ensure that any absentee ballot it has received within the deadline specified in this section is delivered to the appropriate polling place prior to the close of the polls. No absentee ballot that is received at the polling place after the close of the polls may be counted in the election results.
Source: SL 1991, ch 328, § 6.
38-32-3.3. Voting eligibility of participating growers--Affidavit.
To be eligible to vote in a district election, a participating grower as defined in § 38-32-1 shall sign a participating grower affidavit at the time of voting. A husband and wife, a landlord and tenant, and a landowner and purchaser under a contract for deed which is of record in the office of the register of deeds in the county where the real property is situated are each entitled to vote for director, if they meet the requirements of § 38-32-1. No individual, landlord, tenant, partnership, limited liability company, corporation, cooperative, association, or fiduciary may cast more than one vote per election even if operations are carried on in more than one council district. A participating grower may vote only in the council district in which he resides. A partnership, limited liability company, corporation, cooperative, or association resides in the council district where its principal place of business is located. A partnership, limited liability company, corporation, cooperative, or association shall attach a written authorization to the participating grower affidavit which indicates that the person casting the vote has been authorized to do so.
Source: SL 1991, ch 328, § 8; SL 1994, ch 351, § 91.
38-32-6. Notice of subsequent elections.
Notice of subsequent elections for directors of the council in a district shall be given by the council by publication in a newspaper of general circulation in the district and in any other reasonable manner as may be determined by the council. More than one notice may be published, but at least one notice shall be published at least seven days, but no more than twenty-one days before the election. Any notice shall set forth the period of time for voting, voting places, provision for absentee balloting, and such other information as the council may deem necessary.
Source: SL 1988, ch 318, § 6; SL 1991, ch 328, § 2.
38-32-6.1. Notice of pending expiration of term--Time--Required information.
The council shall publish at least once, in at least one newspaper of general circulation in each council district in which a director is to be elected, a notice of the pending expiration of the director's term. The notice shall be published at least twenty-one days, but no more than forty days, before the deadline for filing nominating petitions. The notice shall specify how nominating petition forms may be obtained, the time and place for filing nominating petitions and the time and place of the election.
Source: SL 1991, ch 328, § 3.
38-32-7. Receipt of highest number of votes by winning candidate--Terms of directors.
In any election held pursuant to this chapter, the candidate receiving the highest number of votes in the district shall be elected. Director terms shall be for three years and no director of the council may serve for more than two complete consecutive terms. The terms of office for the initial directors shall be determined by lot. One-third of the initial directors shall serve for one year, one-third of the initial directors shall serve for two years, and one-third of the initial directors shall serve for three years. Directors shall take office on March first of the year of the election.
Source: SL 1988, ch 318, § 7; SL 1991, ch 328, § 7.
38-32-8. Administration of subsequent election--Election judges--Ballot security--Certification.
After election of the initial directors, the council shall administer subsequent elections for directors of the council with the assistance of the secretary. The council shall appoint in each county of the district a committee of three persons to serve as election judges. If the council is unable to appoint a full committee of election judges, the secretary shall appoint the judges. One of the election judges shall be the South Dakota State University Cooperative Extension Service agent, or acting agent, for the county, if available. The election judges shall be responsible for ballot security and count and shall deliver the ballots, the election results and a completed certification of election form to the council office or a designated representative. The election judges shall also be responsible for certifying that all who vote are eligible voters according to § 38-32-3.3.
The council shall canvass the results of the election within fifteen days after certification and shall declare elected the person receiving the highest number of votes for each office. The council shall provide a certificate of election to each person declared elected.
Source: SL 1988, ch 318, § 8; SL 1991, ch 328, § 9.
38-32-9. Districts from which directors elected.
One director shall be elected from each of the following districts:
District Number |
Counties Comprising District |
I |
Union, Clay, Yankton, Lincoln, Turner |
II |
Minnehaha, Moody, Lake, Miner |
III |
Brookings, Kingsbury, Hamlin, Deuel, Codington |
IV |
Clark, Day, Grant, Roberts, Marshall |
V |
Brown, McPherson, Campbell, Walworth, Corson, Perkins, Harding |
VI |
Spink, Faulk, Edmunds, Potter |
VII |
Aurora, Sanborn, Jerauld, Buffalo, Beadle, Hand, Hyde |
VIII |
Bon Homme, Hutchinson, Douglas, McCook, Hanson, Davison |
IX |
Charles Mix, Gregory, Brule, Lyman, Hughes, Sully, Dewey, Stanley, Jones, Tripp, Todd, Mellette, Ziebach, Haakon, Jackson, Bennett, Oglala Lakota, Fall River, Custer, Pennington, Meade, Lawrence, Butte |
Source: SL 1988, ch 318, § 9; SL 2010, ch 202, § 5; SL 2015, ch 56 (HJR 1005), eff. May 1, 2015.
38-32-9.1. Assignment of directors during transition.
Within sixty days of July 1, 2010, the council shall assign or reassign one director to each of the nine districts on the basis of residency and equity. Any director not so assigned or reassigned shall serve at large until the expiration of that director's term. During the transition interval, the council may, notwithstanding the provisions of § 38-32-2, exceed nine directors.
Source: SL 2010, ch 202, § 7.
38-32-10. Vacancies.
If a director of the council ceases to be a participating grower, dies or resigns from office prior to the expiration of his term, the council shall appoint, subject to approval by the secretary, a participating grower from the district for the balance of the unexpired term.
Source: SL 1988, ch 318, § 10; SL 1991, ch 328, § 10.
38-32-11. President and officers--Quorum--Calling of meetings.
The council shall annually elect a president and such other officers as are advisable and necessary to administer this chapter. A majority of voting directors shall constitute a quorum. All meetings of the council shall be called by the president. However, special meetings may be called by three directors of the council. The council shall adopt procedures for the calling of special meetings.
Source: SL 1988, ch 318, § 11; SL 2010, ch 202, § 6.
38-32-12. Deposit of funds--Appropriation--Expenditures.
Moneys collected from checkoff fees shall be deposited in a special revolving fund created in the state treasury and shall be continuously appropriated to the council. Expenditures of these funds shall be made in accordance with the provisions of Title 4.
Source: SL 1988, ch 318, § 12.
38-32-13. Powers of council.
The council may, but is not limited to:
(1) Contract and cooperate with any person, organization, or with any governmental department or agency for market maintenance and expansion, research, education, transportation, and for the prevention, modification, or elimination of trade barriers which obstruct the free flow of corn and corn products to market;
(2) Expend the funds collected pursuant to this chapter and appropriated for its administration;
(3) Appoint, discharge, fix compensation for, and prescribe the duties of such personnel as it may deem necessary;
(4) Accept donations of funds, property, services, or other assistance from public or private sources for the purpose of furthering the objectives of the council.
Source: SL 1988, ch 318, § 13.
38-32-14. Promulgation of rules.
The council may promulgate rules pursuant to chapter 1-26 concerning:
(1) The procedures for obtaining a declaratory ruling;
(2) The procedures for assessments collected for corn sold to a first purchaser;
(3) The procedures for obtaining a refund of the assessment;
(4) The procedures for collecting delinquent assessments and assessing penalties;
(5) The record keeping and reporting requirements of first purchasers; and
(6) Procedures, forms, public notices, and other requirements for nominating director candidates and for conducting and certifying elections.
Source: SL 1988, ch 318, § 14; SL 1991, ch 328, § 11.
38-32-15. Assessment on corn marketed to first purchaser within state.
An assessment of one cent per bushel is imposed by the council upon all corn marketed to a first purchaser within the state. This assessment shall be due upon any identifiable lot or quantity of corn. No assessment may be made until July 1, 1988.
Source: SL 1988, ch 318, § 15.
38-32-16. Deduction of assessment from purchase price.
Every first purchaser of corn shall collect the assessment imposed by this chapter by deducting the assessment from the purchase price of all corn subject to the assessment and purchased by the first purchaser.
Source: SL 1988, ch 318, § 16.
38-32-17. Application to be filed by first purchaser--Contents.
Any first purchaser of corn shall file an application with the council on forms prescribed and furnished by the council which shall contain the name under which the first purchaser is transacting business within the state, place of business, and the location of loading places of the first purchaser.
Source: SL 1988, ch 318, § 17.
38-32-18. First purchaser to keep record of corn purchases--Examination by council--Report to council and remittance of assessment--Rules.
Any first purchaser shall keep as a part of its permanent records a record of all purchases of corn, which may be examined by the council at any reasonable time. Every first purchaser shall report to the council stating the quantity of corn received by the first purchaser. The report and remittance of the assessment shall be made at the times and in the manner prescribed by the council pursuant to administrative rules promulgated pursuant to chapter 1-26.
Source: SL 1988, ch 318, § 18.
38-32-19. Enforcement of collection.
If a first purchaser fails to remit the assessment provided under this chapter, the council may enforce collection in any appropriate court within this state.
Source: SL 1988, ch 318, § 19.
38-32-20. Refund to grower--Application--When refund made.
Any grower subject to the assessment provided in this chapter may, within sixty days following such assessment, make application to the council for a refund of the assessment. Upon the return of the refund application, accompanied by a record of the assessment by the first purchaser, the grower shall, within sixty days, be refunded the net amount of the assessment collected. However, a grower who has paid the assessment more than once on the same corn is entitled to a refund of the overpayment.
Source: SL 1988, ch 318, § 20.
38-32-21. Development and dissemination of information by council--Cooperation with agencies and businesses.
The council shall develop and disseminate information and instructions relating to the purpose of the corn assessment and the manner in which refunds may be claimed, and to this extent shall cooperate with governmental agencies, state and federal, and private businesses engaged in the purchase of corn.
Source: SL 1988, ch 318, § 21.
38-32-22. Compensation and expenses for corn utilization council.
Members of the corn utilization council shall receive per diem compensation pursuant to § 4-7-10.4 and shall be reimbursed for necessary expenses incurred in performing the duties prescribed by this chapter. The provisions of this section shall be retroactive in effect to July 1, 1988.
Source: SL 1989, ch 347.
38-32-23. Nomination of directors by petition--Certification--Ballot position.
Director candidates may be nominated by a written petition signed by at least fifteen participating growers who reside in the district. Petition forms shall be provided by the council and shall be filed with the council at least thirty days before the election. The council shall certify the nomination of candidates and prepare official ballots for the election of directors. Ballot position shall be determined by lot.
Source: SL 1991, ch 328, § 4.
38-32-24. Council may contract with Public Utilities Commission to inspect assessment and checkoff records.
The council may contract with the Public Utilities Commission to inspect the records of licensed grain buyers to determine compliance with the assessment and checkoff requirements of this chapter. The contract shall cover the grain buyers to be inspected and the amount the council shall reimburse the Public Utilities Commission for the inspections.
Source: SL 1996, ch 245, § 4; SL 2009, ch 196, § 4.
38-33-1
Definitions.
38-33-2
South Dakota Pork Commission established--Members--Terms of office--Elections--Meetings.
38-33-3
Filling of vacancies on commission.
38-33-4
Election of officers--Quorum--Calling meetings.
38-33-5
Powers of commission.
38-33-6
Promulgation of rules.
38-33-7
Assessment--Collection--Deposit.
38-33-8
Records--Reports and remittances.
38-33-9
Appeal and enforcement.
38-33-10
Application for refund.
38-33-11
Dissemination of information.
38-33-12
Dissolution of commission--Resumption of activities.
38-33-1. Definitions.
Terms used in §§ 38-33-1 to 38-33-12, inclusive, mean:
(1) "Assessment," a per head fee collected on the sale of all varieties of swine in South Dakota;
(2) "Commission," the South Dakota Pork Commission;
(3) "Participating seller," any person who owns or operates an agricultural producing or growing facility for swine and shares in the profits and risks of loss from such operation, and who produces swine in South Dakota during the current or preceding marketing year, and has not requested a refund from the payment of assessments on swine production under §§ 38-33-1 to 38-33-12, inclusive, for the past twelve months;
(4) "Purchaser," any person who buys, accepts for shipment, accepts for consignment, brokers, order buys, or otherwise acquires swine from a producer;
(5) "Secretary," the secretary of the Department of Agriculture and Natural Resources.
Source: SL 2001, ch 219, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-33-2. South Dakota Pork Commission established--Members--Terms of office--Elections--Meetings.
There is hereby established the South Dakota Pork Commission. The commission shall be composed of five members who:
(1) Are landowning residents of South Dakota;
(2) Are at least twenty-five years of age and residents of South Dakota;
(3) Have been actually engaged in raising swine in this state for a period of at least five years;
(4) Derive a substantial portion of their income from raising swine; and
(5) Are participating sellers.
The initial members shall be appointed by the secretary from a list of recommendations submitted to the secretary by the pork producers of the state. The terms of members are three years; the initial appointments shall be for staggered terms. The secretary is an ex officio, nonvoting member of the commission.
Each successor to the initial members shall be elected by the pork producers of the state under rules promulgated by the secretary pursuant to chapter 1-26. No member may serve for more than two consecutive elected terms.
Source: SL 2001, ch 219, § 2, 3, 4.
38-33-3. Filling of vacancies on commission.
If a member of the commission ceases to be a participating seller or resigns from office before the expiration of the member's term, the secretary shall appoint a successor for the balance of the term of office vacated.
Source: SL 2001, ch 219, § 5.
38-33-4. Election of officers--Quorum--Calling meetings.
The commission shall annually elect a chair and a vice chair. A majority of voting members constitutes a quorum. All meetings of the commission shall be called by the chair except that special meetings may be called by three members of the commission. The commission shall adopt procedures for the calling of special meetings.
Source: SL 2001, ch 219, § 6.
38-33-5. Powers of commission.
The commission may:
(1) For purposes related to the swine industry, enter into contracts, including loans and grants, and cooperate with any person, any local, state, or national organization, whether public or private, or with any governmental department or agency for the discovery, promotion, development, and expansion of domestic and export markets and industries and for research, protection, education, transportation, and health issues;
(2) Expend the funds collected pursuant to §§ 38-33-1 to 38-33-12, inclusive, and appropriated for its administration;
(3) Appoint, employ, discharge, fix compensation for, and prescribe the duties of such personnel as it deems necessary;
(4) Accept donations of funds, property, services, or other assistance from public or private sources for the purpose of furthering the objectives of the commission;
(5) Lease, purchase, own, maintain, operate, and dispose of equipment and supplies necessary to carry out the provisions of §§ 38-33-1 to 38-33-12, inclusive.
Source: SL 2001, ch 219, § 7.
38-33-6. Promulgation of rules.
The commission shall promulgate rules pursuant to chapter 1-26 concerning:
(1) The procedures for obtaining a declaratory ruling;
(2) The procedures for collecting assessments for swine sold to a purchaser and the amount of the assessment in accordance with § 38-33-7;
(3) The procedures for obtaining a refund of the assessment;
(4) The procedures for collecting delinquent assessments and assessing penalties;
(5) The record-keeping and reporting requirements of purchasers.
Source: SL 2001, ch 219, § 8.
38-33-7. Assessment--Collection--Deposit.
An assessment not to exceed 0.45 percent of the market value of each swine when sold is imposed by the commission upon all swine sold in the state by a South Dakota resident. However the commission may enter into reciprocal agreements with other states that also have a swine checkoff fee to remit the assessment to the state where the swine were grown.
Any purchaser of swine shall collect the assessment imposed by §§ 38-33-1 to 38-33-12, inclusive, by deducting the assessment from the purchase prices of all swine subject to the assessment.
Moneys collected from checkoff fees shall be deposited in a special revolving fund created in the state treasury and are continuously appropriated to the commission.
Source: SL 2001, ch 219, §§ 9, 10, 11.
38-33-8. Records--Reports and remittances.
Each purchaser shall keep a permanent record for three years of all purchases of swine, which may be examined by the commission at any reasonable time. Each purchaser shall report to the commission stating the seller and quantity of swine. The report and remittance of the assessment shall be made at the times and in the manner prescribed by the commission pursuant to rules promulgated by the commission pursuant to chapter 1-26.
Source: SL 2001, ch 219, § 12.
38-33-9. Appeal and enforcement.
If a purchaser disputes an assessment made under §§ 38-33-1 to 38-33-12, inclusive, the purchaser may appeal to the commission, which shall conduct a hearing and resolve the matter pursuant to the contested case provisions of chapter 1-26. If a purchaser fails to remit the assessment provided in §§ 38-33-1 to 38-33-12, inclusive, the commission may enforce collection in any appropriate court within this state.
Source: SL 2001, ch 219, § 13.
38-33-10. Application for refund.
Within ninety days following the assessment, any seller subject to the assessment provided in §§ 38-33-1 to 38-33-12, inclusive, may apply to the commission for a refund of the assessment. The refund application shall be accompanied by a copy of the record of the assessment on the sale. The commission shall refund the amount of the assessment collected within sixty days of receiving a valid refund application.
Source: SL 2001, ch 219, § 14.
38-33-11. Dissemination of information.
The commission, to inform the seller, shall develop and disseminate information and instructions relating to the purpose of the swine assessment and manner in which refunds may be claimed, and to this extent shall cooperate with government agencies, state and federal, and private businesses engaged in the purchase of swine.
Source: SL 2001, ch 219, § 15.
38-33-12. Dissolution of commission--Resumption of activities.
If any national promotion, research, or consumer information program that uses an assessment mechanism on the sale of swine and is under the supervision of an agency of the federal government is resumed or established, the collection of assessments under §§ 38-33-1 to 38-33-12, inclusive, is suspended beginning sixty days after the collection of assessments under the national program begins. If the collection of assessments under §§ 38-33-1 to 38-33-12, inclusive, remains suspended for more than two years, the commission is dissolved and the assets and liabilities of the commission shall be managed as the Legislature shall determine. If, after the commission has been dissolved, the collection of assessments by the national program ceases for a period of sixty days, new members of the commission shall be appointed and subsequent commission members elected as provided in §§ 38-33-1 to 38-33-12, inclusive, and the activities of the commission shall resume.
Source: SL 2001, ch 219, § 16.
CHAPTER 38-34
PULSE CROPS
38-34-1 Definitions.
38-34-2 South Dakota Pulse Crops Council--Initial appointment of members.
38-34-3 Terms of members--Subsequent election of council members--Qualification--Vacancy.
38-34-4 Election of officers--Quorum--Meetings.
38-34-5 Compensation of members.
38-34-6 Pulse crops fund--Collection and expenditure of funds.
38-34-7 Powers and duties of council.
38-34-8 Promulgation of rules.
38-34-9 Effect of chapter on Department of Agriculture and Natural Resources or other agencies.
38-34-10 Assessment on pulse crop--Rate--Reciprocal agreements.
38-34-11 Collection and remission of assessment.
38-34-12 First purchaser of pulse crops--Information required on application or affidavit.
38-34-13 Record of purchases of pulse crops--Quantity--Rules on report and assessment.
38-34-14 Pledge or mortgage of pulse crops as security for loan under federal price support program--Procedures for payment of assessment.
38-34-15 Satisfaction of assessment liability if crops remain in storage for duration of pledge or mortgage--Exception.
38-34-16 Undercollections or overcollections of one dollar or less--Commodity Credit Corporation not required to collect or refund.
38-34-17 Enforcement of collection.
38-34-18 Refund of assessment--Application--Time for refund.
38-34-19 Information on purpose of assessment and claim of refund--Development and dissemination.
38-34-20 Referendum on raising or reducing assessment.
38-34-21 Council may contract with Public Utilities Commission to inspect assessment and checkoff records.
38-34-1. Definitions.
Terms used in this chapter mean:
(1) "Council," the South Dakota Pulse Crop Council;
(2) "First purchaser," any person, firm, corporation, association, partnership, agent, or broker buying, accepting for sale, or otherwise acquiring pulse crops after harvest from a grower. A grower selling unharvested pulse crops or delivering pulse crops from the farm on which they are produced to storage facilities, packing shed, or processing plant is not a first purchaser;
(3) "Grower," any person who is the legal initial owner of pulse crops harvested from more than ten acres;
(4) "Participating grower," a grower who has not requested a refund from the payment of assessments on pulse crops under this chapter for the current or previous year;
(5) "Pulse crops," lentils, dry peas, chickpeas, and lupines;
(6) "Secretary," the secretary of the Department of Agriculture and Natural Resources.
Source: SL 2005, ch 214, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-34-2. South Dakota Pulse Crops Council--Initial appointment of members.
The South Dakota Pulse Crops Council is composed of five members who are participating growers of dry peas, lentils, chickpeas, or lupines. The secretary shall make the initial appointments to the council and the secretary or a designee may serve as a nonvoting ex officio member. Initial appointments to the council shall include five participating growers, including a dry pea grower, a chickpea grower, a lentil or lupine grower, and two at-large pulse producers. If no grower representing one of these crops is available or willing to serve, then another at-large grower shall be appointed.
Source: SL 2005, ch 214, § 2.
38-34-3. Terms of members--Subsequent election of council members--Qualification--Vacancy.
The term of the members of the council is three years. However, the initial appointments shall be for staggered terms. Succeeding council members shall be nominated by participating growers and appointed by the secretary of agriculture and natural resources. No council member may serve more than four consecutive terms. If a member ceases to be a participating grower, the secretary shall declare the member's office vacant, and the secretary shall appoint a successor for the balance of the term of the office vacated.
Source: SL 2005, ch 214, § 3; SL 2013, ch 195, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-34-4. Election of officers--Quorum--Meetings.
The council shall annually elect a chair and vice-chair. A majority of voting members constitutes a quorum. All meetings of the council shall be called by the chair. However, special meetings may be called by three members of the council. The council shall adopt procedures for the calling of special meetings.
Source: SL 2005, ch 214, § 4.
38-34-5. Compensation of members.
Compensation for the members of the council shall be paid pursuant to § 4-7-10.4.
Source: SL 2005, ch 214, § 5.
38-34-6. Pulse crops fund--Collection and expenditure of funds.
Funds collected pursuant to this chapter shall be deposited with the state treasurer in a special fund known as the pulse crops fund. Expenditures of these funds shall be made in accordance with the provisions of chapter 4-7.
Source: SL 2005, ch 214, § 6.
38-34-7. Powers and duties of council.
The council shall promote the development, marketing, processing, and production of pulse crops in South Dakota. In the administration of this chapter, the council may:
(1) Contract and cooperate with any person or with any governmental department or agency for research, education, promotion, and transportation;
(2) Expend the funds collected pursuant to this chapter and appropriated for its administration;
(3) Appoint, discharge, fix compensation for, and prescribe the duties of personnel as necessary, subject to approval of the secretary;
(4) Accept donations of funds, property, services, or other assistance from public or private sources for the purpose of furthering the objectives of the council.
Source: SL 2005, ch 214, § 7.
38-34-8. Promulgation of rules.
The council shall promulgate rules pursuant to chapter 1-26 concerning:
(1) The procedures for obtaining a declaratory ruling;
(2) The procedures by which assessments are collected for pulse crops grown or sold to a first purchaser;
(3) The procedures for obtaining a refund of the assessment;
(4) The procedures for collecting delinquent assessments and assessing penalties; and
(5) The record-keeping and reporting requirements of first purchasers.
Source: SL 2005, ch 214, § 8.
38-34-9. Effect of chapter on Department of Agriculture and Natural Resources or other agencies.
Nothing in this chapter abrogates or limits the rights, powers, duties, and functions of the Department of Agriculture and Natural Resources or any other agency of the state.
Source: SL 2005, ch 214, § 9; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-34-10. Assessment on pulse crop--Rate--Reciprocal agreements.
An assessment at the rate of one percent of the net market price is levied and imposed on any pulse crop grown or sold in South Dakota to a first purchaser. The council may enter into reciprocal agreements with other states that also have a pulse checkoff to remit the assessment to the state where the crop is grown. This assessment is due on any identifiable lot or quantity of a pulse crop.
Source: SL 2005, ch 214, § 10.
38-34-11. Collection and remission of assessment.
Each first purchaser of pulse crops shall collect the assessment imposed by this chapter by charging and collecting from the seller the assessment at the prescribed rate by deducting the assessment from the purchase price of the crops subject to the assessment and purchased by the first purchaser. The assessments shall be paid to the department within thirty days of the end of each calendar quarter.
Source: SL 2005, ch 214, § 11.
38-34-12. First purchaser of pulse crops--Information required on application or affidavit.
Each first purchaser of pulse crops shall file an application or affidavit with the council on forms prescribed and furnished by the council which contain the name under which the first purchaser is transacting business within the state, the place of business, and the location of loading places of the first purchaser.
Source: SL 2005, ch 214, § 12.
38-34-13. Record of purchases of pulse crops--Quantity--Rules on report and assessment.
Each first purchaser shall keep a permanent record of all purchases of pulse crops, which may be examined by the council at any reasonable time. The first purchaser shall report to the council the quantity of pulse crops received by the first purchaser. The report and remittance of the assessment shall be made at the times and in the manner prescribed by the council in rules promulgated pursuant to chapter 1-26.
Source: SL 2005, ch 214, § 13.
38-34-14. Pledge or mortgage of pulse crops as security for loan under federal price support program--Procedures for payment of assessment.
In the case of a pledge or mortgage of pulse crops as security for a loan under the federal price support program, the assessment established under § 38-34-10 shall be deducted from the proceeds of the loan at the time the loan is made, or be deducted thereafter by agencies of the federal government. The producer's note and loan agreement, producer's note and supplemental loan agreement, or delivery instructions issued by the federal agency to the grower fulfill the requirements for invoices, and these documents constitute proof of payment of the assessment on the pulse crops. Forms supplemental or alternate to those approved in this section that are provided by the Commodity Credit Corporation of the United States Department of Agriculture and contain the necessary information may be used for the purposes of this section. Identification numbers created by the Commodity Credit Corporation for use in lieu of the name of the grower from whom the assessment was collected are approved, if authorized officials of the State of South Dakota have access at all reasonable times to records in the United States Department of Agriculture Farm Service Agency county offices showing the names of growers to whom such identification numbers have been assigned.
Source: SL 2005, ch 214, § 14.
38-34-15. Satisfaction of assessment liability if crops remain in storage for duration of pledge or mortgage--Exception.
If pulse crops described in § 38-34-14 remain in farm storage for the duration of the pledge or mortgage, the assessment paid at the time the loan was made completely satisfies the assessment liability unless upon subsequent actual delivery of the pulse crop from farm storage in satisfaction of the pledge, or mortgage in the amount of one dollar or more, any underpayment is due solely to the necessity of estimating the quantity of the pulse crops placed in farm storage.
Source: SL 2005, ch 214, § 15.
38-34-16. Undercollections or overcollections of one dollar or less--Commodity Credit Corporation not required to collect or refund.
In connection with the collection of the pulse crop assessment on Commodity Credit Corporation pulse loans disbursed and purchase agreement settlement made, undercollections or overcollections of the pulse crop assessment amounting to one dollar or less as a result of errors do not require collection of the underpayment or refund of the overpayment by the Commodity Credit Corporation, and its responsibility in such cases is waived.
Source: SL 2005, ch 214, § 16.
38-34-17. Enforcement of collection.
If any first purchaser fails to pay the assessment provided in this chapter, the council may enforce collection in any appropriate court within this state.
Source: SL 2005, ch 214, § 17.
38-34-18. Refund of assessment--Application--Time for refund.
Any grower subject to the assessment provided in this chapter, within sixty days following the assessment, may apply to the council for a refund of the assessment. Upon return of the refund application accompanied by a record of the assessment by the first purchaser, the grower shall, within sixty days, be refunded the net amount of the assessment collected. Additionally, a grower, who for any reason, pays the assessment more than once on the same pulse crops, upon furnishing proof of this to the council, is entitled to a refund of the overpayment.
Source: SL 2005, ch 214, § 18.
38-34-19. Information on purpose of assessment and claim of refund--Development and dissemination.
The council shall develop and disseminate information and instructions relating to the purpose of the pulse crop assessment and manner in which refunds may be claimed.
Source: SL 2005, ch 214, § 19.
38-34-20. Referendum on raising or reducing assessment.
If fifteen percent of the participating growers, as disclosed by the records of the council for the preceding year, petition the council, the council shall conduct a referendum among the participating growers of the state to determine whether they wish the Legislature to raise or reduce the assessment imposed by this chapter. The referendum may be conducted only among participating growers who have paid all assessments pursuant to this chapter for the preceding year, and the ballots shall be prepared by the council and mailed to each participating grower at least thirty days before the last date for filing ballots. In addition, each ballot shall be accompanied by a notice to each participating grower:
(1) Of the date of the filing of the petition by the growers for the referendum and the number of signatures contained on the petition;
(2) Of the date and place where the council will open and tabulate the ballots. The date may be not less than five days after the last date for filing the ballots;
(3) Of the last date upon which ballots may be filed with the council, or postmarked if delivered to the council by mail; and
(4) That any participating grower may attend the meeting of the council at the time the ballots are opened and the votes tabulated.
If a majority of the participating growers voting upon the question are in favor of the proposed change, the council shall certify the result to the secretary with the request that the secretary prepare a bill to submit to the next legislative session to modify this chapter accordingly. The results of the referendum are advisory only, and the Legislature is not obligated to adopt legislation enacting the proposals contained in the referendum.
Source: SL 2005, ch 214, § 20.
38-34-21. Council may contract with Public Utilities Commission to inspect assessment and checkoff records.
The council may contract with the Public Utilities Commission to inspect the records of licensed grain buyers to determine compliance with the assessment and checkoff requirements of this chapter. The contract shall cover the grain buyers to be inspected and the amount the council shall reimburse the Public Utilities Commission for the inspections.
Source: SL 2005, ch 214, § 21; SL 2009, ch 196, § 5.
CHAPTER 38-35
INDUSTRIAL HEMP
38-35-1 Definitions.
38-35-2 Purchasing, receiving, or obtaining industrial hemp--License required--Violation as misdemeanor.
38-35-3 Application for grower license--Location and size requirements.
38-35-3.1 Application for a research license.
38-35-4 Application for processor license--Fee--Location notice.
38-35-5 Criminal background check--Denial of license for conviction--Licensure exemption.
38-35-6 Hemp regulatory program fund--Purpose--Expenditures.
38-35-7 License issuance--Denial, revocation, or suspension--Contested case.
38-35-8 Planting verification--Documentation to be filed--Contents.
38-35-9 Entrance by department--Consent--Fee--Inspection, confiscation, and disposal--Costs--Liability for destruction--Records.
38-35-10 Inspection timing and procedure.
38-35-11 Promulgation of rules--Fees.
38-35-12 Department of Health--Promulgation of rules.
38-35-13 Repealed.
38-35-14 Testing samples--Exceeding concentration--Destruction or remediation of lot.
38-35-15 State hemp production plan--Submission to United States Department of Agriculture--Establishment of program.
38-35-16 Transportation--Consent to search and seizure--Inspection by law enforcement--Penalty.
38-35-17 Transportation by persons other than grower licensee--Required documentation--Violation as misdemeanor.
38-35-17.1 Grower licensee transportation documentation requirements--Violation as misdemeanor.
38-35-18 Rules of United States Department of Agriculture.
38-35-19 Reporting to attorney general.
38-35-20 Coordination with other government entities.
38-35-21 Industrial hemp for smoking prohibited--Violation as misdemeanor.
38-35-22 Industrial hemp used in wildlife food plots.
38-35-23 Prohibition on industrial hemp and marijuana being commingled.
38-35-1. Definitions.
Terms used in this chapter mean:
(1) "Applicant," a person, including the state or any agency or institution thereof, any municipality, political subdivision, public or private corporation, individual, partnership, limited liability company, association, or trust; and includes any officer or governing or managing body of any municipality, political subdivision, or public or private corporation, or limited liability company, applying for an industrial hemp grower license, processor license, or both;
(2) "Department," the Department of Agriculture and Natural Resources;
(3) "Chemically derived cannabinoid," a chemical substance created by a chemical reaction that changes the molecular structure of any chemical substance derived from the cannabis plant. The term does not include:
(a) Cannabinoids produced by decarboxylation from a naturally occurring cannabinoid acid without the use of a chemical catalyst;
(b) Non-psychoactive cannabinoids; or
(c) Cannabinoids in a topical cream product;
(4) "Greenhouse," any indoor structure or enclosed building capable of continuous cultivation throughout the year, no less than two thousand eight hundred and eighty square feet, not part of a residential dwelling. Greenhouses may contain multiple lots that are separated and identified;
(5) "Hemp" or "industrial hemp," the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a total delta-9 tetrahydrocannabinol concentration of not more than three-tenths of one percent on a dry weight basis;
(6) "Key participant," a sole proprietor, a partner in a partnership, a principal executive officer for a government entity, or a person with executive managerial control in a corporation or limited liability company;
(7) "Industrial hemp product," a finished manufactured product, or consumer product made from industrial hemp with a total delta-9 tetrahydrocannabinol concentration of not more than three-tenths of one percent, derived from or made by processing industrial hemp. This term does not include a product containing chemically derived cannabinoids, including:
(a) Delta-8 tetrahydrocannabinol, also known as delta-8-THC;
(b) Delta-10 tetrahydrocannabinol, also known as delta-10-THC;
(c) Tetrahydrocannabinol acetate, also known as THC-O-acetate or THC-O;
(d) Hexahydrocannabinol, also known as HHC; or
(e) Tetrahydrocannabiphoral, also known as THCP;
(8) "Industrial hemp stalk bale," a bale that contains two main types of fiber, bast or long fiber found in the bark (skin) and hurd (shive), or short fiber located in the core of the stem, with a total delta-9 tetrahydrocannabinol concentration of not more than three-tenths of one percent;
(9) "Lot," a contiguous area in a field or greenhouse containing the same variety or strain of hemp throughout the area. In addition, "lot" means the terms, "farm," "tract," "field," and "subfield" used by the United States Department of Agriculture Farm Service Agency to mean "lot";
(10) "Measurement of uncertainty," the parameter associated with the result of a measurement, that characterizes the dispersion of the values that could reasonably be attributed to the particular quantity subject to measurement;
(11) "Process" or "processing," to render raw industrial hemp plants or plant parts from their natural or original state to an initial processed form. Typical processing includes decortication, devitalization, crushing, or extraction;
(12) "Processor," a person that converts raw hemp into an initial processed form;
(13) "Produce" or "producing," to grow, germinate, dry, sort, grade, bale, grind, mill, pelletize, and harvest hemp plants in the field or in a greenhouse;
(14) "Product in process," the product being processed by a state licensed hemp processor or the transfer of that product at no higher than one percent total delta-9 tetrahydrocannabinol between one or more licensed hemp processors during the process of processing state or federally approved, lab-tested biomass from a licensed grower into a finished industrial hemp product;
(15) "Remediation," the process of rendering non-compliant cannabis compliant using methods accepted by the USDA;
(16) "Secretary," the secretary of the Department of Agriculture and Natural Resources;
(17) "Total delta-9 THC or total delta-9 tetrahydrocannabinol," the value determined after the process of decarboxylation, or the application of a conversion factor if the testing methodology does not include decarboxylation, that expresses the potential total delta-9 tetrahydrocannabinol content derived from the sum of the THC and THCA content and reported on a dry weight basis; and
(18) "Transporter," any person transporting, hauling, or delivering immature or mature hemp or product in process, but not industrial hemp product or sterilized seeds that are incapable of beginning germination.
Source: SL 2020, ch 176, § 1, eff. Mar. 27, 2020; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021; SL 2022, ch 155, § 1, eff. Mar. 18, 2022; SL 2024, ch 129, § 3; SL 2024, ch 168, § 1.
38-35-2. Purchasing, receiving, or obtaining industrial hemp--License required--Violation as misdemeanor.
No person may purchase, receive, or obtain industrial hemp or product in process, other than industrial hemp seed or industrial hemp product, for planting, storing, propagating, producing, or processing unless the person has a license as provided by this chapter or is working under contract with or under the direction of a licensee. The licensee is responsible, either civilly or criminally, for any person working under contract with or under the direction of a licensee for all sections of this chapter.
It is a Class 2 misdemeanor to purchase, receive, or obtain industrial hemp or product in process, other than industrial hemp product, for planting, storing, propagating, producing, or processing without a license. No unlicensed person is subject to criminal penalties for possession or distribution of hemp seed.
Source: SL 2020, ch 176, § 2, eff. Mar. 27, 2020; SL 2022, ch 155, § 2, eff. Mar. 18, 2022.
38-35-3. Application for grower license--Location and size requirements.
After the department receives approval by the United States Secretary of Agriculture for the state plan submitted pursuant to § 38-35-15, any person seeking to purchase, receive, or obtain industrial hemp, other than industrial hemp product and industrial hemp stalk bales, for planting, storing, propagating, or producing shall apply to the secretary for a grower license on an application form prescribed by the department and submit a nonrefundable annual application fee. The secretary shall deposit fees collected under this chapter in the hemp regulatory program fund.
An application for licensure to plant, grow, or produce industrial hemp must be for at least one-half, contiguous outdoor acre with a three hundred plant minimum, or in a greenhouse with a fifty plant minimum, or combination thereof. No industrial hemp grower's license may be issued by the secretary to plant, grow, or produce industrial hemp within the corporate limits of any incorporated municipality without receiving verification from the municipality that it meets all applicable municipal zoning regulations.
Source: SL 2020, ch 176, § 3, eff. Mar. 27, 2020; SL 2021, ch 182, § 1, eff. Mar. 25, 2021; SL 2022, ch 155, § 3, eff. Mar. 18, 2022; SL 2024, ch 168, § 2.
38-35-3.1. Application for a research license.
Any person seeking to plant, store, propagate, or produce industrial hemp for the purpose of research shall apply to the secretary for a research license on an application form prescribed by the department and submit a nonrefundable annual application fee. The secretary shall deposit fees collected under this chapter in the hemp regulatory program fund pursuant to § 38-35-6. Research licensees may be exempt from lot size minimums pursuant to § 38-35-3. Applicants for a research license must be affiliated with an accredited university. Applicants for a research license must submit a summary to the department that outlines the applicant's objectives and a timeline of activities.
All industrial hemp produced or processed under a research license must be:
(1) Grown, used, or processed for research purposes only; and
(2) Properly disposed of in a manner to render irretrievable and unable to enter the stream of commerce, except for industrial hemp seed.
Source: SL 2022, ch 155, § 4, eff. Mar. 18, 2022.
38-35-4. Application for processor license--Fee--Location notice.
After the department receives approval by the United States Secretary of Agriculture for the state plan submitted pursuant to § 38-35-15, any person seeking to purchase, receive, or obtain industrial hemp, other than industrial hemp product, for processing shall apply to the secretary for a processor license on an application form prescribed by the department and submit a nonrefundable annual application fee. The applicant may submit an application form for a processor license at any time. The secretary shall deposit fees collected under this chapter in the hemp regulatory program fund.
The applicant shall provide to the department the street address, legal description, and latitude and longitude coordinates for any location where hemp will be processed under the processor's license and certify that any location where hemp is to be processed is under the control of the applicant. A processor licensee shall provide notice of any change in ownership or location to the department within ten days of a change. Failure to amend change of ownership or location automatically invalidates the license, and a new license must be obtained.
Source: SL 2020, ch 176, § 4, eff. Mar. 27, 2020; SL 2021, ch 182, § 2, eff. Mar. 25, 2021; SL 2022, ch 155, § 5, eff. Mar. 18, 2022.
38-35-5. Criminal background check--Denial of license for conviction--Licensure exemption.
Each applicant for any license under this chapter, key participant, and landowner, if the applicant is the lessee, shall submit to a state and federal criminal background investigation by means of fingerprint checks by the Division of Criminal Investigation and the Federal Bureau of Investigation. A licensed applicant must only submit to a background criminal investigation pursuant to this section once every three years, unless requested by the secretary. Upon application for a license, the department shall submit fingerprints to the division. Upon completion of the criminal background check, the division shall forward to the department all information obtained as a result of the criminal background check. This information must be obtained prior to the licensure of the applicant. All costs or fees associated with the criminal background checks are the responsibility of the applicant. Information provided to the department under this section is confidential, is not public record, and is exempt from the provisions of chapter 1-27. However, the department may share this information with law enforcement and the Department of Public Safety. Failure to submit to or cooperate with a criminal background check is grounds for denial or revocation of a license. The secretary may deny licensure if any applicant, key participant, or landowner has been convicted of a misdemeanor or felony relating to a controlled substance or marijuana under state or federal law within the previous ten years. Licensure under this chapter is not required for employees of the state of South Dakota if performing official duties. Any person who has previously submitted fingerprints to the Division of Criminal Investigation as part of an application under the hemp program is not required to resubmit fingerprints but shall authorize the use of the previously submitted fingerprints for an updated state and federal background check. All costs or fees associated with the criminal background checks are the responsibility of the applicant. The secretary may waive the requirement that landowners submit fingerprints for a state and federal background check if the applicant is unable to have a fingerprint card completed. Other types of background checks may be required in lieu of submitting fingerprints on cards or online.
Source: SL 2020, ch 176, § 5, eff. Mar. 27, 2020; SL 2021, ch 182, § 3, eff. Mar. 25, 2021; SL 2022, ch 155, § 6, eff. Mar. 18, 2022; SL 2024, ch 168, § 3.
38-35-6. Hemp regulatory program fund--Purpose--Expenditures.
There is hereby created within the state treasury the hemp regulatory program fund, into which all application fees, license fees, inspection fees, and other fees or revenue paid to the state from the operation of the hemp regulatory program shall be deposited. All moneys in the fund created in this section shall be used for the purpose of administering the hemp regulatory program. Interest earned on money in the fund shall be deposited into the fund. Expenditures from the fund shall be appropriated through the normal budget process.
Source: SL 2020, ch 176, § 6, eff. Mar. 27, 2020.
38-35-7. License issuance--Denial, revocation, or suspension--Contested case.
If the applicant has completed the application to the satisfaction of the secretary, paid the application fee, returned a criminal background check compliant with § 38-35-5, and is eligible for a license under this chapter, the secretary shall issue the license upon receipt of an annual license fee.
A grower or research license issued under this chapter is valid for fifteen months from the date of issuance. A processor license issued under this chapter is valid for up to three years from the date of issuance.
The department may deny, revoke, or suspend a license of any person who:
(1) Violates any provision of this chapter or administrative rule promulgated under the authority of this chapter;
(2) Violates any rule set forth by the United States Department of Agriculture regarding industrial hemp;
(3) Provides false or misleading information in connection with any application required by this chapter;
(4) Has been convicted of a misdemeanor or felony relating to a controlled substance or marijuana under state or federal law within the previous ten years;
(5) Has been charged with or convicted of a misdemeanor or felony relating to a controlled substance or marijuana under state or federal law since the most recent criminal background check; or
(6) Requests the secretary to revoke or suspend the license.
Any person whose license is denied, revoked, or suspended under this section may request a hearing pursuant to chapter 1-26.
Source: SL 2020, ch 176, § 7, eff. Mar. 27, 2020; SL 2021, ch 182, § 4, eff. Mar. 25, 2021; SL 2022, ch 155, § 7, eff. Mar. 18, 2022; SL 2024, ch 168, § 4.
38-35-8. Planting verification--Documentation to be filed--Contents.
Within thirty days of planting, each grower licensee under this chapter shall file with the department planting verification documentation as required by the secretary to identify the type and variety of each hemp seed planted with its corresponding lot.
Source: SL 2020, ch 176, § 8, eff. Mar. 27, 2020; SL 2022, ch 155, § 8, eff. Mar. 18, 2022.
38-35-9. Entrance by department--Consent--Fee--Inspection, confiscation, and disposal--Costs--Liability for destruction--Records.
The secretary may contract with the Department of Public Safety to conduct inspections and sampling of lots and any processor location. The department and the Department of Public Safety may enter on any land or other property where hemp is grown, produced, stored, or processed for the purpose of inspections, sample collection, testing, or investigation while enforcing this chapter. Any person who holds a license under this chapter is deemed to have given consent to the reasonable search and seizure of any hemp without a warrant to determine the lawful amount of total delta-9 tetrahydrocannabinol concentration and for enforcement of the provisions of this chapter.
The secretary shall assess a grower inspection fee per lot for grower licensees, a research inspection fee per lot for research licenses, and a processor inspection fee per location for processor licensees.
Any substance found to be in violation of this chapter is subject to confiscation and disposal at the direction of the Department of Public Safety. Any costs arising from the loss of crop, destruction, confiscation, or disposal are the responsibility of the grower, producer, processor, or owner of the substance. The state is not liable for any confiscation, seizure, disposal, or destruction of any substance carried out under this chapter. Any testing, inspection, and investigation results must be provided to the licensee. Notice of any violation must be provided to the licensee in writing. Inspection and investigation records are not open records pursuant to chapter 1-27.
Source: SL 2020, ch 176, § 9, eff. Mar. 27, 2020; SL 2022, ch 155, § 9, eff. Mar. 18, 2022.
38-35-10. Inspection timing and procedure.
At the discretion of the secretary, a grower licensee may be inspected and samples collected no more than thirty days before the hemp is harvested. The grower licensee shall contact the department prior to harvest to ensure a reasonable amount of time to schedule an inspection. The grower licensee is required to be present during the inspection. No harvested lot of hemp must be commingled with another harvested lot of hemp and no hemp may leave the dominion of control of the grower licensee until the grower licensee receives a laboratory result from the department that confirms each lot complies with 7 U.S.C. Chapter 38, Subchapter VII, as provided in 7 C.F.R §§ 990.70(d) and 990.71(d) in effect as of March 22, 2021.
Any location of the processor licensee is subject to random inspection. The processor licensee is required to be present during the inspection.
At the discretion of the secretary, a research licensee may be inspected, and samples may be collected. The research licensee is required to be present during the inspection.
Source: SL 2020, ch 176, § 10, eff. Mar. 27, 2020; SL 2021, ch 182, § 5, eff. Mar. 25, 2021; SL 2022, ch 155, § 10, eff. Mar. 18, 2022; SL 2024, ch 168, § 5.
38-35-11. Promulgation of rules--Fees.
The department shall promulgate rules, pursuant to chapter 1-26, to:
(1) Establish application, application form, licensure, and renewal procedures;
(2) Establish requirements to prevent the spread of hemp and hemp seeds from licensed land areas and provide for the assessment of costs for the remediation thereof;
(3) Establish criteria and procedures for denial, revocation, or suspension of a license under this chapter;
(4) Make any modification or addition to the hemp regulatory program in order to comply with any federal statutes or any rules and regulations regarding hemp enacted or implemented by the United States Department of Agriculture;
(5) Establish a nonrefundable annual license application fee not to exceed fifty dollars, a non-refundable annual grower license fee not to exceed five hundred dollars, a non-refundable annual research grower license fee not to exceed one hundred dollars, and a non-refundable annual processor license fee not to exceed two thousand dollars;
(6) Establish procedures for the collection of planting and harvest data for each lot;
(7) Establish rules for corrective action for negligent and culpable violations of this chapter;
(8) Establish transportation documentation requirements;
(9) Establish inspection procedures and requirements, a grower inspection fee per lot not to exceed two hundred fifty dollars, a research inspection fee per lot not to exceed two hundred fifty dollars, a remediation fee not to exceed one hundred dollars per hour, and a processor inspection fee per any processor location not to exceed five hundred dollars; and
(10) Establish sampling and testing procedures to determine if the hemp tested and sampled contains the lawful amount of total delta-9 tetrahydrocannabinol concentration of not more than three-tenths of one percent.
Source: SL 2020, ch 176, § 11, eff. Mar. 27, 2020; SL 2022, ch 155, § 11, eff. Mar. 18, 2022.
38-35-12. Department of Health--Promulgation of rules.
The Department of Health shall promulgate rules, pursuant to chapter 1-26, to:
(1) Make any modification or addition to the hemp regulatory program in order to comply with any federal statutes or any rules and regulations regarding hemp enacted or implemented by the United States Department of Agriculture;
(2) Establish testing procedures to determine if the hemp tested contains the lawful amount of total delta-9 tetrahydrocannabinol concentration and certifying results; and
(3) Establish labeling requirements for industrial hemp products.
Source: SL 2020, ch 176, § 12, eff. Mar. 27, 2020; SL 2022, ch 155, § 12, eff. Mar. 18, 2022.
38-35-13. Repealed.
Source: SL 2020, ch 176, § 13, eff. Mar. 27, 2020; SL 2021, ch 182, § 6, eff. Mar. 25, 2021; SL 2022, ch 155, § 19.
38-35-14. Testing samples--Exceeding concentration--Destruction or remediation of lot.
The department compliance testing must be conducted by a laboratory approved by the Drug Enforcement Administration. The laboratory shall report the total delta-9 tetrahydrocannabinol concentration level and the measurement of uncertainty for each sample tested pursuant to this section. If a test reveals a total delta-9 tetrahydrocannabinol concentration of more than three-tenths of one percent but not more than one percent, the licensee may request a retest at the licensee's expense. If upon the retesting, the total delta-9 tetrahydrocannabinol concentration exceeds three-tenths of one percent, the entire lot from which the noncompliant sample was collected must either be destroyed or remediated and retested according to the United States Department of Agriculture guidelines. However, a sample that tests a result within a measurement of uncertainty that produces a range that includes a total delta-9 tetrahydrocannabinol concentration of three-tenths of one percent is compliant for the purposes of this chapter.
Source: SL 2020, ch 176, § 14, eff. Mar. 27, 2020; SL 2021, ch 182, § 7, eff. Mar. 25, 2021; SL 2022, ch 155, § 13, eff. Mar. 18, 2022; SL 2024, ch 168, § 6.
38-35-15. State hemp production plan--Submission to United States Department of Agriculture--Establishment of program.
The department shall work with the attorney general to develop a state hemp production plan and submit the plan to the United States Department of Agriculture for approval of a program to license the growth, production, storage, processing, and transportation of industrial hemp in South Dakota. The department shall establish a program once approval is received by the United States Department of Agriculture.
Source: SL 2020, ch 176, § 15, eff. Mar. 27, 2020.
38-35-16. Transportation--Consent to search and seizure--Inspection by law enforcement--Penalty.
Any transporter is deemed to have given consent to the reasonable search and seizure by law enforcement of any hemp without a warrant to determine the lawful amount of total delta-9 tetrahydrocannabinol concentration. For purposes of this section, product in process that is properly documented is compliant. Any law enforcement officer may require any transporter to stop for the purposes of inspection. During a stop, a law enforcement officer may collect a sample of any hemp for the purpose of testing for any concentration of total delta-9 tetrahydrocannabinol that exceeds three-tenths of one percent on a dry weight basis. Each sample collected by law enforcement may not exceed eight ounces.
It is a Class 2 misdemeanor to transport industrial hemp or product in process, but not industrial hemp product, without appropriate documentation demonstrating compliance with an industrial hemp program of a federal, state, or tribal authority, in addition to any permit or documentation required by § 38-35-17.
Source: SL 2020, ch 176, § 16, eff. Mar. 27, 2020; SL 2022, ch 155, § 14, eff. Mar. 18, 2022.
38-35-17. Transportation by persons other than grower licensee--Required documentation--Violation as misdemeanor.
If the transporter is not a grower licensee, that transporter shall have in the transporter's possession the following documentation:
(1) A copy of the license under which the industrial hemp was grown or produced;
(2) A laboratory report produced by a Drug Enforcement Administration-registered laboratory that confirms the lot of origin of all hemp being transported complies with 7 U.S.C. Chapter 38, Subchapter VII, as provided in 7 C.F.R 990.70(d) and 990.71(d) in effect as of March 22, 2021;
(3) A signed affirmation from the licensee and the transporter that no illicit drugs or variations of hemp not explicitly authorized by 7 U.S.C. Chapter 38, Subchapter VII will be transported; and
(4) A bill of lading or manifest that includes the shipment contents, the specific name and address of the transporter, the specific name and address of the origin and lot of origin, the destination of the shipment, the total weight of the load, and the type of vehicle being used.
Failure to possess the appropriate documentation pursuant to this section is a Class 2 misdemeanor.
Source: SL 2020, ch 176, § 17, eff. Mar. 27, 2020; SL 2021, ch 182, § 8, eff. Mar. 25, 2021; SL 2022, ch 155, § 15, eff. Mar. 18, 2022.
38-35-17.1. Grower licensee transportation documentation requirements--Violation as misdemeanor.
A grower licensee traveling from the land as described in the licensee's application to the storage location as described in the licensee's application shall have in the transporter's possession the following:
(1) A copy of the grower license under which the industrial hemp was grown or produced; and
(2) A manifest that includes the specific name and address of the transporter, the specific lot from which the industrial hemp being transported was harvested, the destination storage location for the hemp, and the type of vehicle being used.
Failure to possess the appropriate documentation pursuant to this section is a Class 2 misdemeanor.
Source: SL 2021, ch 182, § 9, eff. Mar. 25, 2021.
38-35-18. Rules of United States Department of Agriculture.
Each applicant, licensee, key participant, and transporter of industrial hemp, other than industrial hemp product, shall abide by any rules set forth by the United States Department of Agriculture and the United States Department of Agriculture-approved state hemp production plan.
Source: SL 2020, ch 176, § 18, eff. Mar. 27, 2020; SL 2022, ch 155, § 16, eff. Mar. 18, 2022.
38-35-19. Reporting to attorney general.
The attorney general shall annually collect and compile information, statistical and otherwise, which will, as far as practicable, present an accurate survey and may be useful in the study of the effect legalizing industrial hemp has had on controlled substance and marijuana prosecutions in this state, including the extent and character of alleged crimes not prosecuted or dismissed, the operations of police in drug investigations, the charging discretion of prosecuting attorneys, and the administration of criminal justice due to the legalization of industrial hemp. All information collected under this section shall be reported annually to the Governor and Legislature by December first each year.
Source: SL 2020, ch 176, § 19, eff. Mar. 27, 2020.
38-35-20. Coordination with other government entities.
The department, Department of Health, and Department of Public Safety may provide to another state, local, tribal, or federal government entity, any specific licensee or permittee information as may be necessary to verify the legality or compliance of any licensee or permitee under this chapter. Application for, and receipt of, a license or permit under this chapter serves as the applicant's consent to provide information without prior notice or disclosure to the applicant that the information will be or has been shared.
Source: SL 2020, ch 176, § 20, eff. Mar. 27, 2020.
38-35-21. Industrial hemp for smoking prohibited--Violation as misdemeanor.
The sale or use of industrial hemp for smoking or inhaling is prohibited. A violation of this section is a Class 1 misdemeanor.
Source: SL 2020, ch 176, § 21, eff. Mar. 27, 2020.
38-35-22. Industrial hemp used in wildlife food plots.
Industrial hemp used in wildlife food plots not intended to be harvested must be sampled by November 1 of the year planted. No cannabidiol varieties shall be grown for the purpose of wildlife food plots.
Source: SL 2022, ch 155, § 17, eff. Mar. 18, 2022.
38-35-23. Prohibition on industrial hemp and marijuana being commingled.
No industrial hemp may be grown, stored, or transported concurrently with marijuana. A violation of this section is a Class 2 misdemeanor.
Source: SL 2022, ch 155, § 18, eff. Mar. 18, 2022.