TITLE 49
PUBLIC UTILITIES AND CARRIERS
Chapter
01 Public Utilities Commission
01A Public Utilities Commission Gross Receipts Tax Fund
02 Carriers' Powers And Duties In General
03 Carrier Regulation In General [Transferred]
04 Carriers Of Persons [Repealed]
05 Carriers Of Property [Repealed]
06 Carriers Of Messages [Transferred]
07 Right-Of-Way For Carrier Facilities
07A One-Call Notification System For Excavation Activities
08 Discriminatory, Monopolistic And Coercive Practices Of Carriers [Repealed]
09 Passes Issued By Carriers [Repealed]
10 Carriers' Rates, Fares And Charges [Transferred]
11 Charges By Carriers And Utilities Pending Rate Litigation
12 Connecting Carriers [Repealed]
13 Procedure On Complaints To Public Utilities Commission
14 Rehearings And Appeals From Public Utilities Commission [Repealed]
15 Marine Carriers [Repealed]
16 Railroad Corporations [Repealed]
16A Intrastate Railroad Regulation
16B South Dakota Railroad Authority
16C Railroad Trust Fund
17 State Aid To Railroad Construction And Maintenance
17A Regional Railroad Authorities
18 Railroad Indebtedness [Repealed]
19 Location And Construction Of Railroads [Repealed]
20 Railroad Right-Of-Way [Repealed]
21 Railroad Service And Accommodations [Repealed]
22 Railroad Sidings And Auxiliary Facilities [Repealed]
23 Railroad Warehouse Sites [Repealed]
24 Railroad Employees [Repealed]
25 Railroad Safety And Warning Devices [Repealed]
26 Railroad Accidents And Property Damage [Repealed]
27 Protection Of Railroad Property [Repealed]
28 Motor Carrier Regulation
28A Hazardous Material Transportation Safety
29 Express Companies [Repealed]
30 Telephone And Telegraph Corporations
31 Telecommunications Services
32 Telephone, Telegraph And Electric Lines
32A Television Translator Districts
33 Electric, Street Railway And Gas Corporations
34 Electric, Gas, Water, Heating, Refrigeration And Street Railways Facilities And Service
34A Gas And Electric Utilities Regulation
34B Pipeline Safety
34C Biogas Gathering Lines Safety
35 Consumers Power District Formation
36 Consumers Power District Directors, Officers And Agents
37 Consumers Power District Powers And Operations
38 Consumers Power District Records, Accounts And Reports
39 Consumers Power District Borrowing And Indebtedness
40 Consumers Power District Dissolution And Sale Of Assets
41 Electrical Suppliers [Repealed]
41A Gas And Electric Consumers Council [Repealed]
41B Energy Conversion And Transmission Facilities
42 Public Warehouses Generally [Repealed]
42A Public Storage Warehouses
43 Public Grain Warehouses
44 Grain Inspectors And Weighmasters
45 Grain Buyers
46 Residential Conservation Of Energy
47 Stray Electrical Current And Voltage Remediation
CHAPTER 49-1
PUBLIC UTILITIES COMMISSION
49-1-1 49-1-1. Repealed by SL 1992, ch 325, § 1.
49-1-2 Election of public utilities commissioners--Qualifications and term of office--Vacancies.
49-1-3 Qualifications of commissioners--Age and residence--Interest in companies prohibited.
49-1-4 Duties of commissioners--Sessions of Public Utilities Commission--Removal.
49-1-5 Vacancies in office of commissioner--Appointment by Governor--Term of appointment.
49-1-6 Oath and bond of commissioners.
49-1-7 Salary of commissioners.
49-1-8 Creation of Public Utilities Commission--Secretary--Seal.
49-1-8.1 Commission continued as separate department.
49-1-8.2 Executive director--Appointment--Duties--Signature on behalf of commission.
49-1-9 Proceedings before commission--Quorum--Disqualification--Appointment--Compensation.
49-1-9.1 Providing false or misleading information to commission as misdemeanor.
49-1-10 Hearings before commission--Oaths.
49-1-11 Rules of commission.
49-1-12 Records of official actions--Proceedings open to public.
49-1-12.1 Discussions on internal management not subject to chapter 1-25.
49-1-13 Annual report to Governor--Contents.
49-1-13.1 49-1-13.1. Repealed by SL 1982, ch 14, § 3.
49-1-14 Attorney general as adviser to commission--Suits by commission.
49-1-15 Assistant attorneys general to serve commission exclusively.
49-1-16 Duties of state's attorneys.
49-1-17 49-1-17. Repealed by SL 2009, ch 235, § 1.
49-1-18 Neglect or refusal to perform duties--Misdemeanor--Forfeiture of office.
49-1-19 Appeals from commission.
49-1-2. Election of public utilities commissioners--Qualifications and term of office--Vacancies.
The Public Utilities Commission shall be comprised of three commissioners. Each commissioner shall be elected from, and represent, the state at large. At each general election there shall be elected one Public Utilities Commissioner having the qualifications prescribed by law. Each commissioner shall hold office for a term of six years from the first Tuesday after the first Monday in January following his election, until his successor is elected and qualified.
Source: SDC 1939, § 52.0102; SL 1992, ch 325, § 2.
49-1-3. Qualifications of commissioners--Age and residence--Interest in companies prohibited.
No person is eligible to hold the office of Public Utilities Commissioner except a citizen of the United States, a qualified voter of this state who has attained the age of twenty-five years and has resided within this state for at least two years next preceding his election, and who is not the owner of any bonds or stocks in any company, or in the employment of or in any manner pecuniarily interested in any company, of which the Public Utilities Commission has supervision.
Source: SDC 1939, § 52.0104; SL 1992, ch 325, § 3.
49-1-4. Duties of commissioners--Sessions of Public Utilities Commission--Removal.
Each Public Utilities Commissioner during his term of office shall devote his entire time and attention to the duties of his office. The Public Utilities Commission shall remain in continuous session at its office at the state capital except when necessarily absent in the performance of its duties. If any public utilities commissioner fails to comply with the provisions of this section, it is cause for his removal by the Governor.
Source: SDC 1939, § 52.0107; SL 1992, ch 325, § 4.
49-1-5. Vacancies in office of commissioner--Appointment by Governor--Term of appointment.
If a vacancy occur in the office of Public Utilities Commissioner from death, resignation, or otherwise, the Governor of the state shall make a temporary appointment to fill such vacancy, but the person so appointed shall hold such office only until the next general election and until his successor is elected and qualified. Notwithstanding such appointment, there shall be chosen at the next general election after such vacancy occurs in such office, a public utilities commissioner to fill such vacancy, who shall hold his office only for the unexpired term of the person originally elected thereto.
Source: SDC 1939, § 52.0103.
49-1-6. Oath and bond of commissioners.
Each Public Utilities Commissioner shall take and subscribe the same oath as required of other state officers, and shall be included in the state employees' blanket bond in the penal sum of five thousand dollars conditioned for the faithful performance of his duties.
Source: SDC 1939, § 52.0105; SL 1983, ch 13, § 28.
49-1-7. Salary of commissioners.
The annual salary of each member of the Public Utilities Commission shall be set by the Bureau of Human Resources and Administration in accordance with the provisions of chapter 3-6D.
Source: SDC 1939, § 52.0106; SL 1945, ch 216; SL 1947, ch 234, § 1; SL 1951, ch 257; SL 1953, ch 279; SL 1955, ch 226; SL 1957, ch 268; SL 1961, ch 264; SL 1963, ch 294; SL 1965, ch 260; SL 1968, ch 196, § 1; SL 1972, ch 16, § 12; SL 1974, ch 31, § 10; SL 1977, ch 6, § 10; SL 1978, ch 24, § 12; SL 1980, ch 9, § 7; SL 1981, ch 3, § 9; SL 1982, ch 6, § 7; SL 1983, ch 2, § 10; SL 1984, ch 2, § 7; SL 1985, ch 3, § 10; SL 1986, ch 11, § 10; SL 1988, ch 8, § 11; SL 1989, ch 7, § 6; SL 1991, ch 2, § 7; SL 1992, ch 29, § 2; SL 2012, ch 23, § 100; SL 2024, ch 1 (Ex. Ord. 24-1), § 35, eff. Apr. 8, 2024.
49-1-8. Creation of Public Utilities Commission--Secretary--Seal.
The Public Utilities Commissioners who are elected shall constitute a commission to be known and designated as the Public Utilities Commission of the State of South Dakota. The members of the commission shall elect a chairperson by majority vote and prescribe his duties. The commission shall have an official seal, which shall be judicially noticed.
Source: SDC 1939, §§ 52.0108, 52.0109; SL 1991, ch 380, § 1.
49-1-8.1. Commission continued as separate department.
The Public Utilities Commission is hereby continued as a separate department and budget unit and, except as provided by §§ 1-51-11 and 37-22-1, shall retain all its prescribed functions, including administrative functions.
Source: SL 1973, ch 2, § 59; SL 2003, ch 272 (Ex. Ord. 03-1), §§ 32, 117; SL 2006, ch 231, § 2.
49-1-8.2. Executive director--Appointment--Duties--Signature on behalf of commission.
The Public Utilities Commission may appoint an executive director who shall serve at the pleasure of the commission. The executive director shall serve as the chief administrative officer of the commission and shall be directly responsible to all the members of the commission. The executive director shall carry out those functions that have been delegated to him by the commission or any of its members. The executive director may sign all orders, tariffs, and other documents on the commission's behalf and at the request of the commission after their review. At the time of signature the executive director shall indicate on the face of the document that he has been authorized to sign the document at the request of the commission or individual members. The executive director may not conduct or administer the office so as to discriminate against any of the commission members.
Source: SL 1979, ch 308; SL 1983, ch 333, § 1; SL 1991, ch 380, § 2.
49-1-9. Proceedings before commission--Quorum--Disqualification--Appointment--Compensation.
Such Public Utilities Commission may in all cases conduct its proceedings, when not otherwise particularly prescribed by law, in such manner and places as will best conduce to the proper dispatch of business and to the ends of justice.
A majority of the commissioners shall constitute a quorum for the transaction of business, but no commissioner shall participate in any hearing or proceeding in which he has any conflict of interest or if he is temporarily incapacitated. If a commissioner determines that he is incapacitated or disqualified from participating for any reason in any hearing or proceeding, he shall certify that determination to the Governor, or if the character of the incapacity of any commissioner is such that he is unable to certify his incapacity to the Governor, the commission may make such certification. In the event of any such certification, the Governor shall then appoint an elected constitutional officer, other than the attorney general, to act as a member of the commission in place of the disqualified or incapacitated commissioner for the purpose of such hearing or proceeding only. If all elected constitutional officers, other than the attorney general, have certified to the Governor that the elected constitutional officers are disqualified or otherwise decline the appointment, the Governor may appoint a retired South Dakota circuit judge or retired South Dakota Supreme Court justice to act. If a retired judge or retired supreme court justice is appointed, the judge or justice must be compensated at the rate paid by the Unified Judicial System for compensation of retired judges and justices sitting for a recused judge or justice.
Source: SDC 1939, § 52.0109; SL 1977, ch 386; SL 2024, ch 186, § 1.
49-1-9.1. Providing false or misleading information to commission as misdemeanor.
No person may knowingly provide false or misleading information to the commission in response to, or in compliance with, any statute, order, tariff, rule, direction, demand, or requirement of the commission. A violation of this section is a Class 1 misdemeanor. Each separate act of providing false or misleading information pursuant to this section constitutes a separate offense. This penalty is in addition to any other authorized penalties.
Source: SL 2004, ch 281, § 1.
49-1-10. Hearings before commission--Oaths.
Any party may appear before the Public Utilities Commission and be heard in person or by attorney. Every commissioner shall have the right to administer oaths and affirmations in any proceeding pending before the commission.
Source: SDC 1939, § 52.0109.
49-1-11. Rules of commission.
The Public Utilities Commission may promulgate rules pursuant to chapter 1-26 concerning:
(1) Procedures for filing and cancelling tariffs, and information required to be included in tariffs;
(2) Procedures and requirements for filing and acting upon complaints;
(3) Procedures and requirements for filing applications for new or revised rates or tariff changes;
(4) Regulation of proceedings before the commission, including forms, notices, applications, pleadings, orders to show cause and the service thereof, all of which shall conform to those used in South Dakota courts;
(5) Procedures for obtaining a declaratory ruling and action on petitions for a declaratory ruling;
(6) Procedures and requirements for handling confidential information and determining whether information should be protected as confidential; and
(7) Procedures for communicating with the commissioners.
Source: SDC 1939, § 52.0109; SL 1986, ch 22, § 21; SL 1990, ch 371, § 1; SL 1991, ch 380, § 3.
49-1-12. Records of official actions--Proceedings open to public.
Every vote and official action of the Public Utilities Commission shall be entered of record. The proceedings of the Public Utilities Commission are open to the public as prescribed in chapter 1-25 when the Public Utilities Commission is exercising its regulatory or adjudicatory authority pursuant to Title 49.
Source: SDC 1939, § 52.0109; SL 1991, ch 380, § 4; SL 2013, ch 235, § 1.
49-1-12.1. Discussions on internal management not subject to chapter 1-25.
The Public Utilities Commission is not subject to the requirements of chapter 1-25 when one or more commissioners are meeting among themselves or staff to discuss the internal management of the Public Utilities Commission regarding such things as:
(1) Planning or developing activities or proposed legislation;
(2) Organizing the internal structure of the Public Utilities Commission;
(3) Selecting, appointing, promoting, removing or managing personnel;
(4) Developing reports; or
(5) Developing budgets and expending funds.
Source: SL 2013, ch 235, § 2.
49-1-13. Annual report to Governor--Contents.
The Public Utilities Commission shall annually make a report of its activities to the Governor, at the time and in the manner prescribed by law for other state officers, containing the facts, statements, and explanations deemed necessary by the commission to fully disclose its transactions and conduct.
The commission shall include among other matters, in its annual report the extent such regulation is conferred upon the commission by chapter 49-34A, the following:
(1) A complete financial report of receipts and expenditures, including a list of the regulated utilities and the total amount of fees and assessments paid by each;
(2) A list of the applications, subject, and disposition of each docket number assessed by the commission.
Source: SDC 1939, § 52.0110; SL 1982, ch 14, § 1.
49-1-14. Attorney general as adviser to commission--Suits by commission.
The attorney general shall at all times, when requested, give the Public Utilities Commission such counsel and advice as they may from time to time require; and it shall be his duty to institute and prosecute, whenever requested by the Public Utilities Commission, any and all suits which such commission may deem it expedient and proper to institute, and he shall render to such commission such counsel, advice, and opinions in writing when requested, as are necessary to carry out the provisions of this title or any law of this state, according to the true intent and meaning thereof.
Source: SDC 1939, § 52.0253.
49-1-15. Assistant attorneys general to serve commission exclusively.
The attorney general may, with the approval of the Public Utilities Commission, appoint one or more assistant attorneys general to serve the Public Utilities Commission and work exclusively for the commission.
Source: SDC 1939, § 52.0253; SL 1976, ch 291; SL 1991, ch 380, § 5.
49-1-16. Duties of state's attorneys.
It shall be the duty of the state's attorney of any county in which suit is instituted, or prosecuted pursuant to § 49-1-14, to aid in the prosecution of the same to a final issue upon the request of the Public Utilities Commission or the attorney general.
Source: SDC 1939, § 52.0253.
49-1-18. Neglect or refusal to perform duties--Misdemeanor--Forfeiture of office.
Any Public Utilities Commissioner who intentionally neglects or refuses to perform the duties imposed upon him by this title, is guilty of a Class 2 misdemeanor and in addition to the punishment provided by law, he shall upon conviction forfeit his office.
Source: SDC 1939, § 52.9904; SL 1983, ch 15, § 95.
49-1-19. Appeals from commission.
All appeals from any determination, decision, or order of the Public Utilities Commission shall be conducted in the manner prescribed by chapter 1-26.
Source: SL 1983, ch 332, § 1.
CHAPTER 49-1A
PUBLIC UTILITIES COMMISSION GROSS RECEIPTS TAX FUND
49-1A-1 Purpose of fund.
49-1A-1.1 49-1A-1.1. Repealed by SL 1991, ch 381, § 2.
49-1A-2 Gross receipts tax fund established.
49-1A-3 Annual intrastate gross receipts tax levied--Amount.
49-1A-3.1 49-1A-3.1. Repealed by SL 2003, ch 235, § 2.
49-1A-4 Annual report of gross receipts--Filing date--Verification--Annual rate setting and tax assessment.
49-1A-5 Tax payment date.
49-1A-6 Penalty for late payment--Collection procedure.
49-1A-7 Use of fund for utilities and telecommunications companies regulation expenses--Payment on warrants--Expenditure authorized.
49-1A-8 South Dakota Public Utilities Commission Regulatory Assessment Fee fund created--Deposits--Amount.
49-1A-9 Deposit used to defray analyzing and ruling expenses--Payment on warrants.
49-1A-10 Record of expenditures--Determination of surplus or deficiency--Notice to company--Objection--Hearing--Appeal.
49-1A-11 Actual costs assessed to electric or gas utility or to a utility's supplier.
49-1A-1. Purpose of fund.
It is hereby declared to be in the public interest, in order to permit full and adequate regulation of public utilities as defined in chapter 49-34A, and telecommunications companies as defined in subdivision 49-31-1(28), to establish a fund known as the South Dakota Public Utilities Commission gross receipts tax fund.
Source: SL 1975, ch 112, § 1; SL 1976, ch 292, § 1; SL 1991, ch 381, § 1.
49-1A-2. Gross receipts tax fund established.
There is hereby established the South Dakota Public Utilities Commission gross receipts tax fund to be maintained as a special fund by the treasurer of the State of South Dakota. The fund shall be invested as provided by law and the interest earned shall be credited to the fund.
Source: SL 1975, ch 112, § 2; SL 1991, ch 381, § 3.
49-1A-3. Annual intrastate gross receipts tax levied--Amount.
There is hereby levied on each public utility as defined in subdivision 49-34A-1(12), which is subject to the rate regulation of the commission, and all telecommunications companies as defined in subdivision 49-31-1(26), a tax of not more than .0015 or two hundred fifty dollars, whichever is greater upon the annual intrastate gross receipts derived by the public utility or telecommunications company from its customers within the State of South Dakota during the preceding calendar year. The two hundred fifty dollar minimum gross receipt tax does not apply to telecommunications companies providing local exchange service as defined in subdivision 49-31-1(13) or to radio common carriers.
Source: SL 1975, ch 112, § 3; SL 1976, ch 292, § 2; SL 1982, ch 324, §§ 1, 2; SL 1988, ch 375, § 28; SL 1991, ch 381, § 4; SL 1994, ch 352, § 1; SL 1996, ch 271; SL 2003, ch 235, § 1.
49-1A-4. Annual report of gross receipts--Filing date--Verification--Annual rate setting and tax assessment.
On April first of each year, each company shall file with the Public Utilities Commission, on forms prescribed by the commission, the amount of its gross receipts derived from the company's customers within the State of South Dakota during the preceding calendar year. Such report shall be sworn to and verified by an officer of the company. On May first of each year the commission shall, by order, establish the rate and assess the tax authorized in § 49-1A-3 which, together with any funds remaining from the current fiscal year and the two hundred fifty dollar minimum gross receipt tax, will fund the commission's budget for the next fiscal year and provide a contingency reserve in an amount not to exceed the prior year's budget.
Source: SL 1975, ch 112, § 4; SL 1991, ch 381, § 5; SL 1994, ch 352, § 2; SL 2003, ch 235, § 3.
49-1A-5. Tax payment date.
The tax levied by this chapter is due and payable to the state treasurer on July fifteenth of each year.
Source: SL 1975, ch 112, § 5; SL 1983, ch 334, § 2; SL 1985, ch 372; SL 1994, ch 352, § 3; SL 2003, ch 235, § 4.
49-1A-6. Penalty for late payment--Collection procedure.
If the tax levied under this chapter is not paid on the due date, a penalty of ten percent of the amount of the tax shall be imposed for each month of such delinquency. The tax may be enforced and collected by distress and sale of the personal property of such company in the same manner as is provided for the collection of mobile home taxes pursuant to chapter 10-22.
Source: SL 1975, ch 112, § 6; SL 1992, ch 80, § 218; SL 1994, ch 352, § 4.
49-1A-7. Use of fund for utilities and telecommunications companies regulation expenses--Payment on warrants--Expenditure authorized.
All amounts deposited in the South Dakota Public Utilities Commission gross receipts tax fund are appropriated to the use of the Public Utilities Commission for its expenses in regulating public utilities as defined in chapter 49-34A and telecommunications companies as defined in subdivision 49-31-1(26). Such expenses may be paid out of the fund on warrants drawn by the state auditor upon duly itemized vouchers. The funds necessary for such expenses are hereby authorized to be expended. The funds may not be expended for any other operations of state government.
Source: SL 1975, ch 112, § 7; SL 1976, ch 292, § 3; SL 1979, ch 309, § 1; SL 1991, ch 381, § 6; SL 2003, ch 235, § 5.
49-1A-8. South Dakota Public Utilities Commission Regulatory Assessment Fee fund created--Deposits--Amount.
There is created a special fund within the state treasury to be known as the South Dakota Public Utilities Commission Regulatory Assessment Fee fund. The Public Utilities Commission may require a public utility as defined in § 49-34A-1 to make a deposit of up to five hundred thousand dollars when it files for approval of a general rate case, regardless of the number of issues involved. The commission may require a deposit of up to fifty thousand dollars for the filing of a tariff for approval under the provisions of §§ 49-34A-4 and 49-34A-25.1 to 49-34A-25.4, inclusive, or makes a filing pursuant to §§ 49-34A-97 to 49-34A-100, inclusive. The deposits shall be made to the South Dakota Public Utilities Commission Regulatory Assessment Fee fund, the amount to be designated by commission order. The interest earned on monies in the fund are to be credited to the fund.
Source: SL 1976, ch 296, § 12; SL 1982, ch 325; SL 1986, ch 392; SL 1991, ch 381, § 7; SL 1994, ch 352, § 5; SL 2006, ch 239, § 5; SL 2007, ch 272, § 5; SL 2011, ch 204, § 1; SL 2023, ch 155, § 1.
49-1A-9. Deposit used to defray analyzing and ruling expenses--Payment on warrants.
The amount deposited under § 49-1A-8 or 49-31-12.6 shall be used by the Public Utilities Commission to defray the expense incident to analyzing and ruling upon the filing of the company making the deposit and the amount expended may be recovered as an immediate adjustment to rates by the company. The deposit is appropriated to the use of the Public Utilities Commission for such purpose. Such expenses may be paid out of the fund on warrants drawn by the state auditor upon duly itemized vouchers, and the funds necessary for such expenses are continuously appropriated.
Source: SL 1976, ch 296, § 13; SL 1979, ch 309, § 2; SL 1991, ch 381, § 8; SL 1994, ch 352, § 6.
49-1A-10. Record of expenditures--Determination of surplus or deficiency--Notice to company--Objection--Hearing--Appeal.
The Public Utilities Commission shall keep and maintain a detailed record of the amount expended from each deposit by each company making a deposit pursuant to § 49-1A-8 or 49-31-12.6. Upon the final decision of the Public Utilities Commission, the commission shall make a determination as to the surplus or deficiency of the deposit and shall give the company making the deposit, within thirty days of the final decision, notice in writing of the itemization and the amount that is proposed to be returned or charged to such company. The company making the deposit may thereafter within thirty days file with the commission objections setting out the grounds upon which it is claimed that an excessive amount has been expended. The commission shall within thirty days of receiving such objections hold a hearing and issue an order in accordance with its findings as to the proper amount to be returned or charged to the company. The order may be appealed pursuant to chapter 1-26.
Source: SL 1976, ch 296, § 14; SL 1991, ch 381, § 9; SL 1994, ch 352, § 10.
49-1A-11. Actual costs assessed to electric or gas utility or to a utility's supplier.
If an electric utility or gas utility, as defined in subdivisions 49-34A-1(7) and 49-34A-1(9), respectively, or any person providing or who proposes to provide wholesale electric or gas service to an electric or gas utility for resale, which is exempt from payment of the gross receipts tax fund assessed under § 49-1A-3, is a party to a docket before the South Dakota Public Utilities Commission, the commission may assess the actual cost to the party for its respective cost. The assessment shall be limited to actual amounts expended by the commission for commission employee time, expert witnesses, court reporter fees, document and exhibit preparation, and other necessary and related expenses incurred by the commission. The party may, within thirty days after the assessment is mailed, file written objections with the commission stating the grounds upon which it claims that the assessment is not reasonable. The commission shall within thirty days of receiving such objections hold a hearing and issue an order in accordance with its findings as to the proper amount to be assessed to the party. The order may be appealed pursuant to chapter 1-26.
Source: SL 1991, ch 381, § 10; SL 1994, ch 352, § 7.
49-2-1
Contract of carriage of messages.
49-2-2
Common carrier of messages defined.
49-2-3
Repealed.
49-2-4
Duty of carrier to accept freight.
49-2-5
Repealed.
49-2-6
Preference to federal and state governments.
49-2-7
Contractual limitation of duties--General notice.
49-2-8
Repealed.
49-2-9
Disclaimer of liability--Willful, wanton, or fraudulent conduct.
49-2-10
Compensation of carrier.
49-2-11
Rules governing carriers without reward.
49-2-12
Eminent domain powers.
49-2-1. Contract of carriage of messages.
The contract of carriage is one for the conveyance of messages from one place to another.
Source: SDC 1939, § 8.0101; SL 1979, ch 307, § 12.
49-2-2. Common carrier of messages defined.
Everyone who offers to the public to carry messages is a common carrier.
Source: SDC 1939, § 8.0801; SL 1979, ch 307, § 13.
49-2-4. Duty of carrier to accept freight.
A common carrier must, if able, accept and carry whatever is offered, at a reasonable time and place, of a kind that he undertakes or is accustomed to carry.
Source: SDC 1939, § 8.0802.
49-2-6. Preference to federal and state governments.
A common carrier must always give a preference in time and may give a preference in price to the United States and to this state.
Source: SDC 1939, § 8.0804.
49-2-7. Contractual limitation of duties--General notice.
The obligations of a common carrier cannot be limited by general notice on his part, but may be limited by special contract.
Source: SDC 1939, § 8.0806.
49-2-9. Disclaimer of liability--Willful, wanton, or fraudulent conduct.
A common carrier cannot be exonerated from liability for willful or wanton misconduct, fraud, or willful wrong of himself or his servant by any agreement made in anticipation thereof.
Source: SDC 1939, § 8.0807.
49-2-10. Compensation of carrier.
A common carrier is entitled to a reasonable compensation and no more. He may require payment in advance. If payment is refused, he may refuse to carry.
Source: SDC 1939, § 8.0805.
49-2-11. Rules governing carriers without reward.
Carriers without reward are subject to the same rules as employees without reward unless otherwise provided by statute. They must complete any undertaking they have commenced the same as if they had received reward, unless they restore the person or thing carried to as favorable position as before carriage was commenced.
Source: SDC 1939, § 8.0103.
49-2-12. Eminent domain powers.
A common carrier may exercise the right of eminent domain in acquiring right of way as prescribed by statute.
Source: SDC 1939, § 8.0801.
49-7-1
Repealed.
49-7-2
Regulations of Board of School and Public Lands.
49-7-3, 49-7-4. Repealed.
49-7-5 to 49-7-10. Repealed.
49-7-11
Pipelines that are common carriers--Exemption.
49-7-12
Reasonable charges.
49-7-13
Condemnation of pipeline right-of-way--Width across school and public lands.
49-7-14
Right-of-way across school and public lands--Extra width--Governor's approval.
49-7-15
Plat of pipeline route--Certification, acknowledgment and filing--Compensation for
damages.
49-7-16
Certificate issued by commissioner.
49-7-17
Time allowed for pipeline construction--Forfeiture of rights by nonconstruction.
49-7-18
Payment for school and public lands taken--Valuation--Governor's deed--Reverter.
49-7-19
Relation back of title.
49-7-20
Right to enter and cross school and public lands.
49-7-21
Subdivision of school and public lands--Pipeline right-of-way reserved.
49-7-22
Telecommunications and electrical facilities across school and public lands.
49-7-2. Regulations of Board of School and Public Lands.
The rights and powers conferred by §§ 49-7-11 to 49-7-21, inclusive shall be subject to such reasonable terms, conditions, and regulations as the Board of School and Public Lands may prescribe.
Source: SDC 1939, § 52.0257; SL 1980, ch 321, § 12.
49-7-11. Pipelines that are common carriers--Exemption.
All pipelines holding themselves out to the general public as engaged in the business of transporting commodities for hire by pipeline are common carriers and are not subject to the provisions of Title 49 except as provided by this chapter and chapter 49-41B.
Source: SL 1980, ch 321, § 1; SL 1980, ch 328, § 3; SL 1981, ch 341.
49-7-12. Reasonable charges.
All charges for carriage of property by pipeline must be reasonable.
Source: SL 1980, ch 321, § 2.
49-7-13. Condemnation of pipeline right-of-way--Width across school and public lands.
Any pipeline companies owning a pipeline which is a common carrier as defined by § 49-7-11 may exercise the right of eminent domain in acquiring right-of-way as prescribed by statute. However, in the case of school and public lands, no right-of-way for the purpose of carriage of property by pipeline shall exceed ten feet in width but the pipeline company shall have the right to secure such land as may be reasonably required for pumps, stations, substations, tanks, or buildings necessary for the carriage of the type or kinds of property the pipeline company intends its pipeline to carry.
Source: SL 1980, ch 321, § 3.
49-7-14. Right-of-way across school and public lands--Extra width--Governor's approval.
A pipeline company planning to construct a pipeline in this state may locate and construct the pipeline across any of the school and public lands of this state, and may, for that purpose, hold, occupy, and enjoy a right-of-way therefore, as provided in § 49-7-13 as well as such extra width as may be necessary for cuts, embankments, and other works of the pipeline, subject to the approval of the Governor.
Source: SL 1980, ch 321, § 4.
49-7-15. Plat of pipeline route--Certification, acknowledgment and filing--Compensation for damages.
Each pipeline company planning to construct a pipeline in this state, that has surveyed its pipeline route, shall cause a plat of such route, clearly indicating the center line of the right of way and area thereof in acres and fractions, to be certified by its chief engineer or president, and acknowledged, and filed with the commissioner of school and public lands, and a duplicate with the register of deeds of each county in which the land is situated. There shall also be filed with the commissioner evidence in writing of contact with any leases of school and public lands showing that any damages accruing to an occupant or holder of any improvements upon said public lands has been or will be paid for the same as is provided for owners of private lands and that any damages or disruption of cultivation or grazing shall be compensated.
Source: SL 1980, ch 321, § 5.
49-7-16. Certificate issued by commissioner.
The commissioner of school and public lands shall, upon the filing in his office by any pipeline company of a map of its pipeline across any of the school or public lands, issue to the pipeline company a certificate stating that such lands have been reserved for its use. The certificate shall operate as authority to the pipeline company to take, hold, and use such lands for the purposes of its pipelines.
Source: SL 1980, ch 321, § 6.
49-7-17. Time allowed for pipeline construction--Forfeiture of rights by nonconstruction.
The filing with the commissioner of school and public lands of the map required by § 49-7-16 subject to the provisions of this chapter, authorizes the pipeline company, for one year from the filing date, to enter on the land surveyed and selected and construct a pipeline. If the pipeline company does not construct its pipeline across such land within one year after the filing of the map, it forfeits all rights acquired by the filing of the map.
Source: SL 1980, ch 321, § 7.
49-7-18. Payment for school and public lands taken--Valuation--Governor's deed--Reverter.
Before a pipeline is constructed over school and public lands, payment of the full value of the lands so taken must be made, the value to be ascertained by the commissioner of school and public lands or, in the event of disagreement, by the circuit court in the manner provided for a condemnation proceeding, the Governor shall convey by deed of right-of-way, to the pipeline company constructing the pipeline, the right to hold and use such lands for such purposes only as authorized by this chapter. The deed shall be executed in the name of the state by the Governor, under the great seal of the state, and attested by the commissioner of school and public lands, under the seal of his office. The deed shall contain the provisions that should the land cease to be used, for a period of two years, for the purpose for which the deed was granted, the right-of-way shall revert to the state.
Source: SL 1980, ch 321, § 8.
49-7-19. Relation back of title.
The title vested by the Governor's deed to such lands shall relate back to the date of the filing of the map with the commissioner of school and public lands pursuant to § 49-7-16. No subsequent grant from the state to any other person of any tract of land shall divest the pipeline company of its rights authorized by this chapter.
Source: SL 1980, ch 321, § 9.
49-7-20. Right to enter and cross school and public lands.
Nothing in this chapter may be so construed as to prevent any other person from obtaining the right to enter upon and cross school or other public lands of the state and to maintain his right-of-way across or along such lands.
Source: SL 1980, ch 321, § 10.
49-7-21. Subdivision of school and public lands--Pipeline right-of-way reserved.
The commissioner of school and public lands shall note on the maps in his office each legal subdivision of school and other public lands crossed by any pipeline and its location. In the disposition of such lands the commissioner shall reserve the right-of-way for the use of the pipeline by appropriate description.
Source: SL 1980, ch 321, § 11.
49-7-22. Telecommunications and electrical facilities across school and public lands.
Section 49-7-2 and §§ 49-7-11 to 49-7-21, inclusive, are applicable to corporations, partnerships, or individuals insofar as the provisions apply to a right-of-way on school and public lands for the construction, operation, or maintenance of telecommunications or electric transmission lines including such land as may be reasonably necessary for stations, substations, or buildings necessary for the transmission of telecommunications messages or electrical energy.
Source: SL 1980, ch 321, § 13; SL 1987, ch 345, § 1.
CHAPTER 49-7A
ONE-CALL NOTIFICATION SYSTEM FOR EXCAVATION ACTIVITIES
49-7A-1 Definition of terms.
49-7A-2 Establishment of One-Call Notification Board--Responsibilities--State one-call fund--Continuous appropriation--One-call notification center--Services provided--Required membership and reporting.
49-7A-3 Governing board--Representation--Term of appointment.
49-7A-4 Rules--Operating procedures.
49-7A-5 Notification of proposed excavation.
49-7A-6 49-7A-6. Repealed by SL 2002, ch 211, § 4.
49-7A-6.1 Operator not to be billed when location of excavation on notice differs from location of operator's facility.
49-7A-7 Duties of one-call notification center.
49-7A-8 Location of underground facilities--Marking.
49-7A-9 Failure to provide timely location markings--Inadequate markings--Liability.
49-7A-10 Liability for damage to underground facility.
49-7A-11 49-7A-11. Repealed by SL 2002, ch 211, § 9.
49-7A-12 Notification of damage to underground facility--Repairs--Flammable, toxic, or corrosive gas or liquid.
49-7A-13 Inability to locate underground facility.
49-7A-14 Local permit requirements unaffected.
49-7A-15 Owners and operators of underground facilities required to register with one call notification system.
49-7A-16 49-7A-16. Repealed by SL 1997, ch 263, § 7.
49-7A-17 Complaints--Rules of Practice.
49-7A-18 Penalties.
49-7A-19 Penalties for intentional violations.
49-7A-20 Each violation as separate offense.
49-7A-21 Complaint and order prerequisites for penalty--Time limit.
49-7A-22 Panel to determine existence of probable cause for violation--Recommendation to board.
49-7A-23 Panel to forward complaint to respondent.
49-7A-24 Respondent to satisfy or answer complaint--Procedure.
49-7A-25 Complaint, answer to be sole basis for probable cause determination.
49-7A-26 Factors considered in determining amount of penalty.
49-7A-27 Board to accept panel's recommendation--Exception when party requests hearing--Conduct of hearing.
49-7A-28 Action to recover penalty.
49-7A-29 Record and evidence in court action.
49-7A-30 Board to maintain docket and index.
49-7A-31 Board to keep transcript of proceedings--Certification.
49-7A-32 Removal of board member for conflict of interest.
49-7A-33 Demand for penalty required before suit brought.
49-7A-34 Board action has presumption of validity.
49-7A-35 Annual report of board.
49-7A-1. Definition of terms.
Terms used in this chapter mean:
(1) "Bar test survey," a leakage survey completed with a non-conductive piece of equipment made by driving or boring small holes in the ground at regular intervals along the route of an underground gas pipe for the purpose of extracting a sample of the ground atmosphere and testing the atmosphere in the holes with a combustible gas detector or other suitable device;
(2) "Board," One-Call Notification Board;
(3) "Emergency," an occurrence which demands immediate action to prevent significant environmental damage or loss of life, health, property, or essential public services including the reerecting of critically needed traffic control signs or devices;
(4) "Excavation," any operation in which earth, rock, or other material in or below the ground is moved or otherwise displaced by means of tools, equipment, or explosives, and includes grading, trenching, digging, ditching, drilling, augering, tunneling, scraping, and cable or pipe plowing or driving, except:
(a) Tilling of soil and gardening to a depth of twelve inches and the tilling of soil for agricultural purposes to a depth of eighteen inches;
(b) Pot hole repair and grading of an existing public road if the pot hole repair and grading does not extend more than eighteen inches below the finished roadway;
(c) Any vehicle operation or operation involving the use of any hand tool, other than a power tool, so long as such operation does not extend more than eighteen inches below the surface of the groundline within the right-of-way;
(d) Any road and ditch repair or road and ditch activity that does not extend more than eighteen inches below the surface of the original groundline within the right-of-way;
(e) Digging in a cemetery;
(f) Digging in a planned sanitary landfill; and
(g) Any bar test survey deemed necessary by an operator in response to a suspected natural gas, propane, or other combustible liquid or gas leak that is necessary to ensure public safety in an emergency;
(5) "Excavator," any person who performs excavation;
(6) "Member," any member of the one-call notification center;
(7) "One-call notification center," the statewide one-call notification center established by § 49-7A-2;
(8) "Operator," any person who operates an underground facility;
(9) "Person," an individual, partnership, limited liability company, association, municipality, state, county, political subdivision, utility, joint venture, or corporation, and includes the employer of an individual;
(10) "Underground facility," any item of personal property buried or placed below ground for use in connection with the storage or conveyance of water, sewage, electronic, telephonic or telegraphic communications, fiber optics, cablevision, electric energy, oil, gas, hazardous liquids, or other substances including pipes, sewers, conduits, cables, valves, lines, wires, manholes, and attachments.
Source: SL 1993, ch 346, § 1; SL 1994, ch 351, § 132; SL 1994, ch 354, § 1; SL 2007, ch 264, § 1; SL 2010, ch 219, § 1.
49-7A-2. Establishment of One-Call Notification Board--Responsibilities--State one-call fund--Continuous appropriation--One-call notification center--Services provided--Required membership and reporting.
The Statewide One-Call Notification Board is established as an agency of state government and funded by revenue generated by the one-call notification center. The board is solely responsible for all contractors and employment of any personnel working for the board and retains responsibility for all funds of the board and all expenditures thereof. The board is solely responsible for all functions and duties vested in the board. Any interest earned on money in the state one-call fund shall be deposited in the fund. The money is continuously appropriated to the board to implement and administer the provisions of this chapter. The one-call notification center may be organized as a nonprofit corporation. The one-call notification center shall provide a service through which a person can notify the operators of underground facilities of plans to excavate and to request the marking of the facilities. All operators are subject to this chapter and the rules promulgated thereto. Any operator who fails to become a member of the one-call notification center or who fails to submit the locations of the operator's underground facilities to the center, as required by this chapter and rules of the board, is subject to applicable penalties under §§ 49-7A-18 and 49-7A-19 and is subject to civil liability for any damages caused by noncompliance with this chapter. Any penalties which may be assessed by the board under this chapter must be collected as provided by law and deposited into the one-call fund.
Source: SL 1993, ch 346, § 2; SL 1994, ch 354, § 2; SL 1997, ch 263, § 1; SL 2002, ch 211, § 1; SL 2018, ch 261, § 1, eff. July 1, 2019; SL 2023, ch 156, § 1.
49-7A-3. Governing board--Representation--Term of appointment.
The one-call notification center shall be governed by an eleven member board who shall serve without pay. The board shall consist of one member representing telecommunication companies offering local exchange service to less than fifty thousand subscribers; one member representing telecommunication companies offering local exchange service to fifty thousand or more subscribers; one member representing rural water systems; one member representing rural electric cooperatives; one member representing investor-owned electric utilities; one member representing investor-owned natural gas utilities; one member representing community antenna television systems; one member representing municipalities; one member representing underground interstate carriers of gas or petroleum; and two members representing contractors who perform excavation services. The board shall be appointed by the Governor and shall serve staggered three-year terms.
Source: SL 1993, ch 346, § 3; SL 1997, ch 263, § 15.
49-7A-4. Rules--Operating procedures.
The One-Call Notification Board shall by rules, promulgated pursuant to chapter 1-26, establish the procedures to operate a nonprofit one-call notification center, establish the procedures that regulate the notification process and marking of underground facilities to prevent damage to underground facilities, establish the procedures for gathering information from facility operators that could further improve the ability to reduce damage to underground facilities, establish a competitive bidding procedure to select a vendor to provide the notification service, and establish a procedure whereby members of the one-call notification center share in the costs of the one-call notification center.
Source: SL 1993, ch 346, § 4; SL 1994, ch 354, § 3; SL 1997, ch 263, § 14; SL 2002, ch 211, § 2.
49-7A-5. Notification of proposed excavation.
No excavator may begin any excavation without first notifying the one-call notification center of the proposed excavation. The excavator shall give notice by telephone or by other methods approved by the board pursuant to rules promulgated pursuant to chapter 1-26 to the one-call notification center at least forty-eight hours prior to the commencement of the excavation, excluding Saturdays, Sundays, and legal holidays of the state. The board may promulgate rules to reduce the forty-eight-hour interval for emergency or subsequent inquiries to the original locate request and may lengthen the forty-eight-hour interval for nonexcavation requests.
Source: SL 1993, ch 346, § 6; SL 1994, ch 354, § 4; SL 1997, ch 263, § 2; SL 2002, ch 211, § 3; SL 2007, ch 264, § 2.
49-7A-6.1. Operator not to be billed when location of excavation on notice differs from location of operator's facility.
No operator may be billed for the costs of any notification of excavation if the location of the excavation described in the notice is different than the one call center's record of the description of the location of the operator's underground facilities.
Source: SL 2001, ch 251, § 1; SL 2002, ch 211, § 5.
49-7A-7. Duties of one-call notification center.
The one-call notification center shall:
(1) File with the register of deeds of each county the toll-free telephone number for notification of planned excavation activities in its area;
(2) Maintain adequate records documenting compliance with the requirements of this chapter, including records of all telephone calls and records of all location requests for the preceding forty-eight months which can be obtained by request of either a member or excavator;
(3) Provide the service at minimum, during normal working hours, on business days;
(4) For calls received after normal working hours for the one-call notification center, or on nonbusiness days, provide information for callers which explains emergency notification and excavation procedures; and
(5) Provide a timely method for notifying participating members of the information received regarding proposed excavation activities. The method of notification is to be determined by the one-call notification center and its members.
Source: SL 1993, ch 346, § 8.
49-7A-8. Location of underground facilities--Marking.
An operator shall, upon receipt of the notice, advise the excavator of the location of underground facilities in the proposed excavation area by marking the location of the facilities with stakes, flags, paint, or other clearly identifiable marking within eighteen inches horizontally from the exterior sides of the underground facilities. The board shall promulgate rules, pursuant to chapter 1-26, to establish the response time for operators to mark the underground facilities. The response time shall be no later than forty-eight hours after the receipt of the notice, excluding Saturdays, Sundays, and legal holidays of the state or the excavation start time provided by the excavator, whichever is later. The response time may be less than forty-eight hours for emergency or subsequent inquiries to the original locate request and may be longer than forty-eight hours for nonexcavation requests. Excavators shall maintain a minimum horizontal clearance of eighteen inches between a marked underground facility and the cutting edge of any mechanical equipment. If excavation is required within eighteen inches, horizontally, the excavator shall expose the facility with hand tools or noninvasive methods approved pursuant to rule and shall protect and support the facility prior to further excavation with mechanical equipment.
Source: SL 1993, ch 346, § 9; SL 1997, ch 263, § 4; SL 2002, ch 211, § 6.
49-7A-9. Failure to provide timely location markings--Inadequate markings--Liability.
If location markings requested by an excavator are not provided within the time specified by § 49-7A-8 or any rule promulgated pursuant to § 49-7A-8, or if the location markings provided fail to identify the location of the underground facilities in accordance with statute and rule, any excavator damaging or injuring underground facilities is not liable for such damage or injury except on proof of negligence.
Source: SL 1993, ch 346, § 10; SL 2002, ch 211, § 7.
49-7A-10. Liability for damage to underground facility.
Compliance with this chapter and the rules promulgated pursuant thereto does not excuse a person from acting in a careful and prudent manner nor does compliance with this chapter and the rules promulgated pursuant thereto affect any civil remedies otherwise provided by law for personal injury or for property damage except as specifically provided in this chapter. If information requested pursuant to statute or rule, is provided within the time specified and if the information provided sufficiently identifies the location of the underground facilities in accordance with § 49-7A-8 or any rule promulgated pursuant to § 49-7A-8, any excavator damaging or injuring the underground facilities is strictly liable for all damage proximately caused thereby.
Source: SL 1993, ch 346, § 11; SL 2002, ch 211, § 8.
49-7A-12. Notification of damage to underground facility--Repairs--Flammable, toxic, or corrosive gas or liquid.
If any underground facility is damaged, dislocated, or disturbed in advance of or during excavation work, the excavator shall immediately notify the one-call notification center and, if known, the operator of the facility of the damage, dislocation, or disturbance. No excavator may conceal or attempt to conceal any damage, dislocation, or disturbance, nor may that excavator attempt to make any repair to the facility unless authorized by the operator of the facility. If the damage, dislocation, or disturbance results in the escape of any flammable, toxic, or corrosive gas or liquid, the excavator shall immediately report the escape to the authorities by calling the 911 emergency telephone number and notifying the one-call notification center and, if known, the operator of the facility.
Source: SL 1993, ch 346, § 13; SL 1997, ch 263, § 6; SL 2002, ch 211, § 10; SL 2018, ch 262, § 1.
49-7A-13. Inability to locate underground facility.
If in the course of excavation the excavator is unable to locate the underground facility or discovers that the operator of the underground facility has incorrectly located the underground facility, he shall promptly notify the operator, or, if unknown, the one-call notification center.
Source: SL 1993, ch 346, § 14.
49-7A-14. Local permit requirements unaffected.
This chapter does not affect or impair any local ordinances or other provisions of law requiring permits to be obtained before excavation. However, a permit issued by any governing body does not relieve the excavator from complying with the requirements of this chapter.
Source: SL 1993, ch 346, § 15.
49-7A-15. Owners and operators of underground facilities required to register with one call notification system.
Any person owning or operating underground facilities, including a farm tap customer owning a farm tap distribution system, which serves third parties or which crosses a property line or is located in a public highway shall register with the one call notification system as an operator pursuant to this chapter.
Source: SL 1993, ch 346, § 16; SL 2017, ch 197, § 5.
49-7A-17. Complaints--Rules of Practice.
Any person with a complaint against a party who violates or with a complaint against a party who procures, aids, or abets in the violation of § 49-7A-2, 49-7A-5, 49-7A-8, or 49-7A-12, or any rules promulgated pursuant to § 49-7A-2, 49-7A-5, or 49-7A-8, may apply to the board for relief. No complaint may be dismissed because of the absence of direct damage to the complainant or petitioner. The board may promulgate rules of practice prescribing the form for complaints in accordance with chapter 1-26.
Source: SL 2002, ch 211, § 11.
49-7A-18. Penalties.
Except as provided in § 49-7A-19 and in addition to all other penalties provided by law, any person who violates or who procures, aids, or abets in the violation of § 49-7A-2, 49-7A-5, 49-7A-8, or 49-7A-12, or any rules promulgated pursuant to § 49-7A-2, 49-7A-5, or 49-7A-8 may be assessed a penalty of up to one thousand dollars for the first violation and up to five thousand dollars for each subsequent violation that occurs within twelve months of the initial violation.
Source: SL 2002, ch 211, § 12.
49-7A-19. Penalties for intentional violations.
In addition to all other penalties provided by law, any person who intentionally violates or who intentionally procures, aids, or abets in the violation of § 49-7A-2, 49-7A-5, 49-7A-8, or 49-7A-12, or any rules promulgated pursuant to § 49-7A-2, 49-7A-5, or 49-7A-8 may be assessed a penalty of up to five thousand dollars for the first violation and up to ten thousand dollars for each subsequent violation that occurs within twelve months of the initial violation.
Source: SL 2002, ch 211, § 13.
49-7A-20. Each violation as separate offense.
Each violation of any statute or rule of the Statewide One-Call Notification Board constitutes a separate offense. In the case of a continuing violation, each day that the violation continues constitutes a separate violation.
Source: SL 2002, ch 211, § 14.
49-7A-21. Complaint and order prerequisites for penalty--Time limit.
No penalty may be imposed pursuant to §§ 49-7A-18 and 49-7A-19 except by order following a complaint pursuant to § 49-7A-17. A complaint alleging a violation of any statute, except § 49-7A-12, or alleging a violation of any rule of the Statewide One-Call Notification Board shall be brought not later than ninety days after the discovery of the alleged violation, but in no case may the complaint be brought more than one year after the date of the alleged violation. Any complaint alleging a violation of § 49-7A-12 shall be brought within one year of discovery of the alleged violation.
Source: SL 2002, ch 211, § 15; SL 2010, ch 220, § 1.
49-7A-22. Panel to determine existence of probable cause for violation--Recommendation to board.
Upon the initiation of a complaint pursuant to § 49-7A-17, a panel of three or five members of the Statewide One-Call Notification Board shall be appointed by the chair for the purpose of determining whether there is probable cause to believe there has been a violation of any statute or rule of the board. A determination of whether there is probable cause to believe there has been a violation shall be determined by a majority vote of the panel. The panel shall then recommend to the board that the complaint be dismissed for lack of probable cause, or recommend to the board that there is probable cause to believe that there has been a violation and recommend what penalty, if any, should be imposed pursuant to the provisions of § 49-7A-18 or 49-7A-19.
Source: SL 2002, ch 211, § 16.
49-7A-23. Panel to forward complaint to respondent.
Upon receipt of a complaint and the appointment of a panel, the panel shall forward to the respondent a statement of the complaint and a notice requiring the respondent to satisfy the complaint or answer it in writing within twenty days from the date of service of the notice or within such further time as may be specified by the board.
Source: SL 2002, ch 211, § 17.
49-7A-24. Respondent to satisfy or answer complaint--Procedure.
The respondent shall, within the time fixed by the notice served upon it, satisfy the complaint or answer the complaint by filing the original and two copies of the answer in the office of the board and serving a copy on each complainant.
Source: SL 2002, ch 211, § 18.
49-7A-25. Complaint, answer to be sole basis for probable cause determination.
A determination of probable cause shall be made by the panel solely on these submissions and no other evidence shall be considered.
Source: SL 2002, ch 211, § 19.
49-7A-26. Factors considered in determining amount of penalty.
The amount of recommended penalty shall be determined by a majority vote of the panel. Factors to be considered in determining the amount of the penalty shall be:
(1) The amount of damage, degree of threat to the public safety, and inconvenience caused;
(2) The respondent's plans and procedures to insure future compliance with statute and rules;
(3) Any history of previous violations;
(4) Other matters as justice requires.
Source: SL 2002, ch 211, § 20.
49-7A-27. Board to accept panel's recommendation--Exception when party requests hearing--Conduct of hearing.
The board shall accept the recommendations of the panel unless either party requests a hearing. A party requests a hearing by rejecting the panel's recommendation within twenty days from the date of service of the notice. However, the board may extend the time period for requesting a hearing. Failure to request a hearing is considered acceptance of the panel's recommendation. If a hearing is held, the hearing shall be conducted before the board as a contested case under chapter 1-26. Following the hearing, the board shall either render a decision dismissing the complaint for insufficient evidence or shall impose a penalty pursuant to the provisions of § 49-7A-18 or 49-7A-19.
Source: SL 2002, ch 211, § 21; SL 2007, ch 264, § 3.
49-7A-28. Action to recover penalty.
If the amount of the penalty is not paid to the board, the board, shall bring an action in the name of the State of South Dakota to recover the penalty in accordance with § 49-7A-33. No action may be commenced until after the time has expired for an appeal from the findings, conclusions, and order of the board.
Source: SL 2002, ch 211, § 22; SL 2018, ch 261, § 2, eff. July 1, 2019.
49-7A-29. Record and evidence in court action.
In the trial of an action pursuant to § 49-7A-28, the evidence introduced in the proceedings before the board shall constitute the record and evidence on the trial of the case in court. No additional evidence other than that introduced before the board may be introduced at the court trial. The report and order of the board shall be taken and held to be prima facie evidence of the facts stated therein.
Source: SL 2002, ch 211, § 23.
49-7A-30. Board to maintain docket and index.
The board shall keep a docket in which shall be entered all matters coming before it for determination, with the date of the filing of each paper and the final action of the board in the matter. In connection with such docket, there shall be kept a carefully prepared index in which the names of the parties shall be cross-indexed under the names of both the plaintiff and defendant.
Source: SL 2002, ch 211, § 24.
49-7A-31. Board to keep transcript of proceedings--Certification.
In any action or proceeding based upon a complaint which comes before the board, the board shall keep a full, true, and verbatim record of all evidence introduced at any hearing or trial and prepare and file as a part of its record in the action or proceeding a true and correct transcript of the evidence, and attach all exhibits introduced at the trial. There shall be attached to the transcript a certificate from the recording secretary to the effect that it is a true and correct transcript of all testimony introduced at the trial.
Source: SL 2002, ch 211, § 25.
49-7A-32. Removal of board member for conflict of interest.
Either party may request the removal of a board member from any hearing based on a conflict of interest.
Source: SL 2002, ch 211, § 26.
49-7A-33. Demand for penalty required before suit brought.
A demand in writing on the party shall be made for the assessed penalty before suit is brought for recovery under § 49-7A-28. No suit may be brought until the expiration of thirty days after the demand.
Source: SL 2002, ch 211, § 27.
49-7A-34. Board action has presumption of validity.
Any action or proceeding or order of the Statewide One-Call Notification Board raises a presumption of validity. The burden is upon the party claiming the order to be invalid to plead and prove the facts establishing the invalidity.
Source: SL 2002, ch 211, § 28.
49-7A-35. Annual report of board.
On the first day of January of each year, the board shall make an annual report of its activities to the Governor and the Legislature containing the facts, statements, and explanations deemed necessary by the board to fully disclose its transactions and conduct.
Source: SL 2018, ch 261, § 3, eff. July 1, 2019.
49-11-1 to 49-11-4. Repealed.
49-11-5
Bond required for order staying rate decrease--Conditions of bond--Repayment--Violation as misdemeanor.
49-11-6
Receipt for higher rate during period of stay--Condition precedent to grant of
stay--Violation as misdemeanor.
49-11-7
Reports filed during period of stay--Contents--Failure as misdemeanor.
49-11-8
Duty of carrier to refund where decreased rate is affirmed--Violation as
misdemeanor.
49-11-9
Order requiring carrier to make refund--Filing sworn report of refund--Violation as misdemeanor.
49-11-10
Repealed.
49-11-5. Bond required for order staying rate decrease--Conditions of bond--Repayment--Violation as misdemeanor.
No court or judge may grant a restraining order, temporary injunction, or mesne process staying, suspending, or enjoining, during the pendency of any litigation, the operation or enforcement of a law of this state or an order made by its Public Utilities Commission, or an order, resolution, or ordinance made by a board of county commissioners, or governing body of a municipal corporation of this state, fixing the rates or charges for the transportation of messages or for service to be rendered by a public utility or public service corporation, without first requiring, as a condition precedent, the execution and filing in the office of the clerk of such court of a bond conditioned for the repayment and refunding of all rates or charges exacted and received in excess of the rates or charges fixed by the law, order, resolution, or ordinance, the operation of which is stayed or enjoined pending the litigation, if the rate or charge fixed in such law, order, resolution, or ordinance is finally determined in the course of such litigation to be legal and valid.
The violation of such judicial order, this section, or a Public Utilities Commission order issued pursuant to this section by a common carrier, public service corporation, or other public utility subject to this title or by an officer, agent, or employee of such companies is a Class 2 misdemeanor.
Source: SDC 1939, § 52.0402; SL 1979, ch 307, § 73; SL 1983, ch 15, § 103.
49-11-6. Receipt for higher rate during period of stay--Condition precedent to grant of stay--Violation as misdemeanor.
No court or judge may issue a restraining order, temporary injunction, or mesne process described in § 49-11-5 except upon the condition, to be made a condition precedent, that during the pendency of such litigation the common carrier, public utility, or public service corporation upon whose application the restraining order, temporary injunction, or other mesne process was sought must deliver to every patron, firm, person, association or corporation from whom it will exact or receive a rate or charge in excess of the rate or charge fixed in such law or order, resolution, or ordinance, when demanded, a coupon or ticket showing the rate or charge exacted and paid, the total amount collected and what for, the rate or charge fixed in the law, order, resolution, or ordinance, and the amount which would have been collected if the operation of such law, order, resolution or ordinance had not been stayed, suspended, or enjoined, and the amount of money to be refunded if the rates or charges fixed in such law, order, resolution or ordinance are finally be held to be legal and valid.
The violation of such judicial order, this section, or a Public Utilities Commission order issued pursuant to this section by a common carrier, public service corporation, or other public utility subject to this title or by an officer, agent or employee of such companies is a Class 2 misdemeanor.
Source: SDC 1939, § 52.0402; SL 1983, ch 15, § 104.
49-11-7. Reports filed during period of stay--Contents--Failure as misdemeanor.
If a state law, Public Utilities Commission order, or county or municipal order, resolution, or ordinance fixing rates or charges for service to be rendered by a public utility or public service corporation, has been stayed, suspended, or enjoined, the common carrier, public utility, or public service corporation upon whose application the operation and enforcement was stayed, suspended or enjoined, shall file, during the pendency of such litigation and until its final determination, with the Public Utilities Commission, monthly reports showing any rate or charge exacted in violation of the provisions of such law, order, resolution, or ordinance, the total amount of money received, from whom and what for, the rate which should have been exacted under the terms of such law, order, resolution, or ordinance, the total amount of money which should have been received thereunder, and the amount of the refund to be made if the rates or charges fixed in such law, order, resolution, or ordinance are determined to be legal and valid.
The violation of this section or a Public Utilities Commission order issued pursuant to this section by a common carrier, public service corporation, or other public utility subject to this title or by an officer, agent, or employee of such companies is a Class 2 misdemeanor.
Source: SDC 1939, § 52.0403; SL 1979, ch 307, § 74; SL 1983, ch 15, § 105.
49-11-8. Duty of carrier to refund where decreased rate is affirmed--Violation as misdemeanor.
If a state law, a county or municipal order, resolution, or ordinance, or a Public Utilities Commission order or rule, fixing the rates for any service rendered by a public utility or public service corporation, is enjoined pending litigation by any court for any cause, and it is finally determined in such litigation that the rate litigated was lawful and valid, the common carrier, public utility, or public service corporation shall refund immediately to the person entitled thereto any rate or charge exacted or collected in excess of the amount authorized by such law, order, resolution, or ordinance.
A violation of this section or a Public Utilities Commission order issued pursuant to this section by a common carrier, public service corporation, or other public utility subject to this title or by an officer, agent, or employee of such companies is a Class 2 misdemeanor.
Source: SDC 1939, § 52.0401; SL 1979, ch 307, § 75; SL 1983, ch 15, § 106.
49-11-9. Order requiring carrier to make refund--Filing sworn report of refund--Violation as misdemeanor.
If, upon the final determination of litigation in which the operation of such law, order, resolution, or ordinance has been stayed, suspended, or enjoined, it is determined that the rates or charges fixed in such law, order, resolution, or ordinance are legal and valid, the Public Utilities Commission shall give notice to the common carrier, public utility, or public service corporation interested, hold a formal hearing and make and enter findings, conclusions and an order requiring the common carrier, public utility, or public service corporation immediately to make a refund persons from whom it has received charges in excess of the rates fixed in such law, order, resolution, or ordinance, and to file with the commission a sworn report, within the time fixed by the order of the commission, showing the amount of money refunded, to whom, and the date of refundment.
A violation of this section or a Public Utilities Commission order issued pursuant to this section by a common carrier, public service corporation, or other public utility subject to this title or by an officer, agent, or employee of such companies is a Class 2 misdemeanor.
Source: SDC 1939, § 52.0404; SL 1983, ch 15, § 107.
49-13-1
Application to commission by interested party--Direct damage unnecessary--Rules prescribing form and procedure for complaints.
49-13-1.1
Complaint to commission or suit by private person--Election of remedies.
49-13-2
Repealed.
49-13-3
Compliance by telecommunications company or carrier as exoneration only
for particular violation complained of.
49-13-4
Investigation of complaint--Inquiry without complaint.
49-13-5
Authority of commission on inquiry without complaint.
49-13-6
Docket--Contents--Index.
49-13-7
Record--Contents--Transcript of evidence.
49-13-8
Repealed.
49-13-9
Hearing before any commissioner.
49-13-9.1
Corporations and business entities may appear without counsel in certain
cases.
49-13-10 to 49-13-12. Repealed.
49-13-13
Proof of violation--Determination of just rate--Cease and desist order--Duty
of telecommunications company or motor carrier to comply.
49-13-14
Determination of damages--Order directing payment.
49-13-14.1
Violations by telecommunications company or motor carrier--Civil liability--Double liability upon suit--Attorney's fees.
49-13-14.2
Necessity for demand before suit.
49-13-15
Repealed.
49-13-16
Presumption of validity of order--Burden to prove invalidity.
49-13-17
Failure to obey order--Application to court for mandamus--Order directing
payment of money excepted.
49-13-18
Issuance of mandamus or other proper process.
49-13-19
Enforcement of mandamus or other proper process for failure to obey.
49-13-20
Money judgment for default in compliance--Disposition of money.
49-13-21
Recovery of moneys by attachment or execution--Appeal to Supreme Court.
49-13-22
Security on appeal by commission not required--Appeal as not staying court
order--Costs and attorney's fees.
49-13-23
Prosecution of action by attorney general--Assistance of state's attorney--Costs and expenses.
49-13-24
Noncompliance with order for payment of money--Petition in court--Civil
action procedure applicable--Exceptions.
49-13-25
Commission proceedings as evidence in trial--Report and order of
commission as prima facie evidence.
49-13-26
Plaintiff not liable for costs--Supreme Court proceedings--Attorney's fees.
49-13-27
Joinder of parties--Service of process--Venue of service--Judgment in case
of joint parties.
49-13-1. Application to commission by interested party--Direct damage unnecessary--Rules prescribing form and procedure for complaints.
Any person complaining of anything done or omitted by any telecommunications company or motor carrier subject to the provisions of this title in contravention of the provisions thereof, may apply to the commission for relief. No complaint may at any time be dismissed because of the absence of direct damage to the complainant or petitioner. The commission may make rules of practice prescribing the form and procedure for complaints in accordance with chapter 1-26.
Source: SDC 1939, § 52.0301; SL 1987, ch 345, § 17.
49-13-1.1. Complaint to commission or suit by private person--Election of remedies.
Any person claiming to be damaged by any telecommunications company or motor carrier may either make complaint to the commission or may bring suit on his own behalf for the recovery of damages in any court of competent jurisdiction in this state, but no person may pursue both remedies at the same time.
Source: SDC 1939, § 52.0215; SDCL, § 49-3-23; SL 1987, ch 345, § 18.
49-13-3. Compliance by telecommunications company or carrier as exoneration only for particular violation complained of.
If a telecommunications company or motor carrier complained of pursuant to § 49-13-1 shall, within the time specified, make reparation for the injury alleged to have been done or shall correct the wrong complained of, such telecommunications company or motor carrier shall be relieved of liability to the complainant only for the particular violation of law thus complained of.
Source: SDC 1939, § 52.0301; SL 1987, ch 345, § 19.
49-13-4. Investigation of complaint--Inquiry without complaint.
If any telecommunications company or motor carrier complained of pursuant to § 49-13-1 does not satisfy the complaint within the time specified, or there appears to be any reasonable grounds for investigating the complaint, the commission shall investigate the matters complained of in the manner the commission considers proper. The commission may, at any time, institute an inquiry or investigation on its own initiative in any case, involving any matter over which the commission has jurisdiction concerning a complaint that is authorized to be made and filed with the commission by any provision of any law of this state, or concerning any question which may arise, or relate to the enforcement of any provision of any law of this state.
Source: SDC 1939, § 52.0301; SL 1987, ch 345, § 20.
49-13-5. Authority of commission on inquiry without complaint.
The commission may proceed with an inquiry instituted on its own motion as though it had been appealed to by complaint, including the power to make and enforce any order concerning any matter upon which the inquiry is made.
Source: SDC 1939, § 52.0301; SL 1987, ch 345, § 21.
49-13-6. Docket--Contents--Index.
The commission shall keep a docket in which shall be entered all matters coming before it for determination, with the date of the filing of each paper and the final action of the commission in the matter. In connection with such docket there shall be kept a carefully prepared index in which the names of the parties shall be cross-indexed under the names of both the plaintiff and defendant.
Source: SDC 1939, § 52.0305; SL 1987, ch 345, § 22.
49-13-7. Record--Contents--Transcript of evidence.
In any action or proceeding based upon a complaint which comes before the commission, the commission shall keep a full, true, and verbatim record of all evidence introduced at any hearing or trial and prepare and file as a part of its record in the action or proceeding a true and correct transcript of the evidence, and attach all exhibits introduced at the trial. There shall be attached to the transcript a certificate from the recording secretary to the effect that it is a true and correct transcript of all testimony introduced at the trial. Provisions for transcripts in this section are not applicable to license application hearings under chapter 49-28.
Source: SDC 1939, § 52.0306; SL 1984, ch 306, § 1; SL 1987, ch 345, § 23.
49-13-9. Hearing before any commissioner.
Any trial, hearing or investigation based upon a complaint may be held before any commissioner.
Source: SDC 1939, § 52.0308; SL 1987, ch 345, § 24.
49-13-9.1. Corporations and business entities may appear without counsel in certain cases.
In any complaint to the commission by any person claiming to be damaged by any telecommunications company or motor carrier in which damages in the amount of three thousand dollars, or less, are claimed, any corporation, cooperative corporation, limited liability company, or limited liability partnership may represent itself through a designated employee without any requirement of representation by legal counsel.
Source: SL 2003, ch 236, § 1.
49-13-13. Proof of violation--Determination of just rate--Cease and desist order--Duty of telecommunications company or motor carrier to comply.
If, after a hearing pursuant to this chapter, it appears to the satisfaction of the commission that anything has been done or omitted to be done in violation of the provisions of laws of this state, or that any individual or joint rate or charge demanded, charged, collected, or received by any telecommunications company or motor carrier subject to the provisions of this title, or that any individual or joint classifications, regulations, or practices of a telecommunications company or motor carrier are unjust, unreasonable, unjustly discriminatory, unduly preferential, prejudicial, or otherwise in violation of the laws of this state, or that any injury or damage has been sustained by any person, the commission may determine and prescribe the just and reasonable charge, to be observed as the maximum to be charged. The commission shall also determine what classification, regulation, or practice is just, fair, and reasonable to be thereafter followed, and to make an order that such telecommunications company or motor carrier shall cease and desist from the violations to the extent that the commission finds them to exist. The telecommunications company or motor carrier may not thereafter publish, demand, collect, or receive any rate or charge for in excess of the maximum rate or charge prescribed and they shall adopt the classification and conform and abide by the regulations or practices prescribed by the commission.
Source: SDC 1939, § 52.0303; SL 1979, ch 307, § 81; SL 1987, ch 345, § 25.
49-13-14. Determination of damages--Order directing payment.
The commission may determine the extent of any injury or damage which it finds to have been sustained by any person, telecommunications or motor carrier. If the commission determines that any person is entitled to reparation or to an award of damages, the commission shall make an order directing the telecommunications company or motor carrier to pay to such person the sum of money to which he may be entitled, on or before a named day.
Source: SDC 1939, § 52.0303; SL 1987, ch 345, § 26.
49-13-14.1. Violations by telecommunications company or motor carrier--Civil liability--Double liability upon suit--Attorney's fees.
If any telecommunications company or motor carrier subject to the provisions of this chapter does, causes or permits any act or thing prohibited in chapters 49-7 to 49-11, inclusive, and §§ 49-31-7 and 49-31-7.1 or omits to do any act or thing required to be done, such telecommunications company or motor carrier is liable to the person injured thereby for the amount of damages sustained in consequence of any such violation, if recovered without suit; or if recovered by suit, such telecommunications company or motor carrier is liable to the person injured thereby for not to exceed twice the amount of damages sustained in consequence of any such violation complained of, together with costs of suit and a reasonable attorney fee, to be fixed by the court in which the suit is heard on appear or otherwise, which shall be taxed and collected as part of the costs in the case.
Source: SDC 1939, § 52.0214; SDCL, § 49-3-21; SL 1987, ch 345, § 27.
49-13-14.2. Necessity for demand before suit.
If a telecommunications company or motor carrier is liable under § 49-13-14.1, a demand in writing on the telecommunications company shall be made for the money damages sustained before suit is brought for recovery under § 49-13-14.1, and no suit may be brought until the expiration of thirty days after the demand.
Source: SDC 1939, § 52.0214; SDCL, § 49-3-22; SL 1987, ch 345, § 28.
49-13-16. Presumption of validity of order--Burden to prove invalidity.
If any action or proceeding or order of the commission comes into question, the validity of the order is presumed. It is not necessary to allege or prove any fact upon which the validity of the order depends, but the burden is upon the party claiming the order to be invalid to plead and prove the facts establishing the invalidity.
Source: SDC 1939, § 52.0310; SL 1987, ch 345, § 29.
49-13-17. Failure to obey order--Application to court for mandamus--Order directing payment of money excepted.
If a commission order is in effect, other than one for payment of money, and a telecommunications company or motor carrier violates or neglects that order, the commission or any interested person or a person injured by the telecommunications company or motor carrier's failure to obey the order or the attorney general may apply to a circuit court of proper jurisdiction, in which the telecommunications company or motor carrier is operating for a writ of mandamus for the enforcement of the commission's order.
Source: SDC 1939, § 52.0304; SL 1987, ch 345, § 30.
49-13-18. Issuance of mandamus or other proper process.
If, after hearing, the court to which the application was made pursuant to § 49-13-17 determines that the commission's order was made and served upon the telecommunications company or motor carrier and the telecommunications company or motor carrier fails to obey, the court shall enforce obedience to the order by peremptory writ of mandamus or other proper process, mandatory, or otherwise, to restrain the telecommunications company or motor carrier from further violating or disobeying the order of the commission, and enjoining the telecommunications company or motor carrier's obedience.
Source: SDC 1939, § 52.0304; SL 1987, ch 345, § 31.
49-13-19. Enforcement of mandamus or other proper process for failure to obey.
If a telecommunications company or motor carrier disobeys the writ of mandamus or other proper process, mandatory or otherwise, issued pursuant to § 49-13-18, the court may issue writs of attachment or other process of the court incident or applicable to writs of mandamus or other proper process, peremptory or otherwise, against the telecommunications company or motor carrier and, if it is a corporation, against one or more of its directors, officers, or agents or against any owner, lessee, trustee, receiver, or other person failing to obey the writ of mandamus or other process, mandatory or otherwise.
Source: SDC 1939, § 52.0304; SL 1987, ch 345, § 32.
49-13-20. Money judgment for default in compliance--Disposition of money.
The court which issues the writ of mandamus or other proper process, mandatory or otherwise, pursuant to § 49-13-18, may make an order directing the telecommunications company or motor carrier or other person disobeying the writ or other process to pay a sum of money not exceeding, for each telecommunications company or motor carrier or person in default, the sum of one thousand dollars for each day after the day named in the order. By an order from the court, the money shall be paid to the treasury of the county in which the action was commenced, and one-half thereof shall be transferred by the county treasurer to the state treasurer.
Source: SDC 1939, § 52.0304; SL 1987, ch 345, § 33.
49-13-21. Recovery of moneys by attachment or execution--Appeal to Supreme Court.
Any payment ordered pursuant to § 49-13-20 may, without any prejudice to any other mode of recovery, be enforced by attachment or order in the nature of a writ of execution, in the same manner that it would be recovered by a final judgment in personam in the circuit court. The commission or any other interested party may appeal to the Supreme Court of this state under the regulations provided by law in relation to appeals, except as provided by § 49-13-22.
Source: SDC 1939, § 52.0304; SL 1987, ch 345, § 34.
49-13-22. Security on appeal by commission not required--Appeal as not staying court order--Costs and attorney's fees.
In no case may security for an appeal under § 49-13-21 be required in an appeal taken by the commission but no appeal to the Supreme Court may operate to stay or supersede the order of the court, or the execution of any writ or process thereon, and the court may in every such matter order the payment of the costs and attorney fees considered to be reasonable.
Source: SDC 1939, § 52.0304; SL 1987, ch 345, § 35.
49-13-23. Prosecution of action by attorney general--Assistance of state's attorney--Costs and expenses.
If a petition under § 49-13-17 is filed, presented, or to be prosecuted by the commission, by its initiative, the commission may require the attorney general to prosecute. In the prosecution, the attorney general may request the assistance of the state's attorney of that county in any proceedings that are instituted. The state's attorney shall render assistance. The costs and expenses on the part of the commission for the prosecution shall be paid out of the appropriations for the expenses of the commission.
Source: SDC 1939, § 52.0304; SL 1987, ch 345, § 36.
49-13-24. Noncompliance with order for payment of money--Petition in court--Civil action procedure applicable--Exceptions.
If any telecommunications company or motor carrier does not comply with an order for the payment of money by the commission within the time limit of the order, any person for whose benefit the order was made may file in any court of competent jurisdiction of this state a petition or complaint setting forth the causes for which damages are claimed, the proceedings before the commission, and the report and order of the commission in the premises. The suit shall proceed in all other respects as other civil actions for damages, except as provided in §§ 49-13-25 and 49-13-26.
Source: SDC 1939, § 52.0304; SL 1987, ch 345, § 37.
49-13-25. Commission proceedings as evidence in trial--Report and order of commission as prima facie evidence.
In the trial of an action pursuant to § 49-13-24, the evidence introduced in the proceedings before the commission shall constitute the record and evidence on the trial of the case in court. No additional evidence other than that introduced before the commission may be introduced at the court trial. The report and order of the commission in the premises shall be taken and held to be prima facie evidence of the facts stated therein.
Source: SDC 1939, § 52.0304; SL 1987, ch 345, § 38.
49-13-26. Plaintiff not liable for costs--Supreme Court proceedings--Attorney's fees.
The plaintiff in a suit pursuant to § 49-13-24 is not liable for costs at any stage of the proceedings unless the costs accrue on appeal to the Supreme Court, and if the plaintiff eventually prevails, he shall be allowed reasonable attorney fees to be taxed and collected as a part of the costs of the suit.
Source: SDC 1939, § 52.0304; SL 1987, ch 345, § 39.
49-13-27. Joinder of parties--Service of process--Venue of service--Judgment in case of joint parties.
In all suits pursuant to § 49-13-24, all parties in whose favor the commission has made an award of damages to a single order may be joined as plaintiffs, and all parties against whom the order awarding the damages is made, may be joined as defendants. The suits may be maintained by joint plaintiffs against joint defendants, in any court of proper jurisdiction in this state. Service of process against any one of such defendants not found in the county where the suit is brought may be made in any county where the defendant operates its lines or maintains an office. In case of a joint suit, the recovery, if any, may be by judgment in favor of any one or more of the plaintiffs, and against any one or more of the defendants.
Source: SDC 1939, § 52.0304; SL 1987, ch 345, § 40.
49-16A-1
Definitions of terms.
49-16A-2
Corporation law--Applicability to railroads.
49-16A-3
Chapters governing railroads.
49-16A-4
Repealed.
49-16A-5
Freight charges to be just and reasonable.
49-16A-6
Freight charges to be uniformly applied--Unreasonable discrimination defined.
49-16A-7
Unreasonable discrimination prohibited.
49-16A-8
Transportation or service at cut rate or discrimination as felony.
49-16A-9
Failure to file or observe rates or tariffs as felony--Corporation or individual.
49-16A-10
Individual acts or omissions in scope of employment.
49-16A-11
Venue of criminal prosecution.
49-16A-12 to 49-16A-18. Repealed.
49-16A-19
Restraint of trade provisions applicable to railroads.
49-16A-20
Single-line rates as restraint of trade.
49-16A-21
Through rates, joint rates or joint through rates not restraint of trade unless intent
or effect to monopolize.
49-16A-22
Pooling agreements as restraint of trade.
49-16A-23
Common carrier obligations--Limitation.
49-16A-24
Bill of lading or contract for carriage--Shipper's acceptance as assent to terms.
49-16A-25
Lien for freightage.
49-16A-26
Preference to federal and state governments.
49-16A-27
Gratuitous shipment by railroad without reward--Duties.
49-16A-28
Directions of shipper--Conflicting directions--Delivery.
49-16A-29
Delivery at nearest station absent usage to contrary.
49-16A-30
Services other than carriage and delivery--Statutes governing.
49-16A-31
Delivery to connecting carrier--Liability to final destination.
49-16A-32
Railroad responsible for agents' acts.
49-16A-33
Loss or injury of freight in possession of connecting carrier--Proof to shipper on
demand.
49-16A-34
Claim for loss, injury or overcharge--Railroad to respond within sixty days--Bill
of lading or shipping receipt to accompany claim--Returns.
49-16A-35
Suit on claim--Interest--Attorney fee--Remedy cumulative.
49-16A-36
Notice of loss, injury or claim--Minimum time to be allowed--Contrary
contractual provision void.
49-16A-37
Interchange facilities required--Discrimination between connecting roads
prohibited--Switching and transferring cars.
49-16A-38
Joint through rates required--Duty to receive and transport freight and cars.
49-16A-39
Carload lots--Transfer to connecting road without added charge.
49-16A-40
Connecting roads--Intrastate shipments--Reasonable through rates--Same
facilities as for interstate traffic.
49-16A-41
Routing instructions by shipper.
49-16A-42
Sale or lease of road, property, rights, privileges, and franchises authorized.
49-16A-43
Repealed.
49-16A-43.1
Validation of defects in lease or sale made prior to January 1, 1994.
49-16A-43.2
Notice of sale of railroad property--Publication--Copy to be mailed to lessee.
49-16A-44
Report annually to department--Special reports and specific questions.
49-16A-45
Inspection of roads by department.
49-16A-1. Definitions of terms.
Terms used in this chapter mean:
(1) "Common carrier," a carrier which holds itself out to the general public as engaged in the business of transporting freight in intrastate commerce which it is accustomed to and is capable of transporting from place to place in this state, for hire;
(2) "Department," the Department of Transportation created by chapter 1-44;
(3) "For hire," the condition of receiving remuneration of any kind, paid or promised, either directly or indirectly, for the transportation of freight;
(4) "Freight," all property tendered for transportation by a railroad;
(5) "Railroad," any association or corporation, or other entity, other than a state agency or authority, engaged in operating a common carrier by rail regardless of motive power used, excluding street railroads;
(6) "Road," all track, right-of-way, bridges, mainlines, branchlines, spurs, sidetracks, interchanges, and all other fixtures and real property owned or operated by a railroad to discharge its obligations as a common carrier by rail;
(7) "Shipper," a consignor or consignee;
(8) "Commission," the Transportation Commission created by § 1-44-4;
(9) "Negotiated in good faith," a bona fide offer to pay all costs and damages as compensation for the acquisition of property desired by the applicant for the construction or reconstruction of a road, including the economic costs or diminution associated with or caused by the construction or reconstruction if there is a partial taking of property.
Source: SL 1980, ch 322, § 1; SL 1990, ch 372, § 1; SL 1999, ch 222, § 3.
49-16A-2. Corporation law--Applicability to railroads.
Every railroad operating in this state is subject to the applicable provisions of Title 47 of the South Dakota Codified Laws except where in conflict with this chapter, but may additionally exercise the powers authorized by this chapter and is subject to the duties contained in this chapter.
Source: SL 1980, ch 322, § 2.
49-16A-3. Chapters governing railroads.
All railroads, unless built and operated solely for private purposes, are common carriers and are not subject to the provisions of Title 49 except as provided by this chapter and chapters 49-17 and 49-17A.
Source: SL 1980, ch 322, § 3.
49-16A-5. Freight charges to be just and reasonable.
All charges for carriage of freight by railroad must be just and reasonable.
Source: SL 1980, ch 322, § 5.
49-16A-6. Freight charges to be uniformly applied--Unreasonable discrimination defined.
A railroad providing transportation may not charge or receive from a person a different compensation for a service rendered, or to be rendered, in transportation the railroad may perform than it charges or receives from another person for performing a like and contemporaneous service in the transportation of a like kind of freight under substantially similar circumstances. A railroad that charges or receives a different compensation for that service unreasonably discriminates.
Source: SL 1980, ch 322, § 6.
49-16A-7. Unreasonable discrimination prohibited.
A railroad providing transportation or service may not subject a person, place, port, or type of traffic to unreasonable discrimination.
Source: SL 1980, ch 322, § 7.
49-16A-8. Transportation or service at cut rate or discrimination as felony.
A person who knowingly offers, grants, gives, solicits, accepts, or receives by any means transportation or service provided for property by a railroad at less than the rate in effect or by practicing discrimination is guilty of a Class 6 felony.
Source: SL 1980, ch 322, § 8.
49-16A-9. Failure to file or observe rates or tariffs as felony--Corporation or individual.
Any railroad providing transportation or service or an officer, director, receiver, trustee, lessee, agent, or employee of such railroad that intentionally does not file and publish its rate or tariffs as required by law or observe those tariffs is guilty of a Class 6 felony.
Source: SL 1980, ch 322, § 9; SL 1983, ch 15, § 109.
49-16A-10. Individual acts or omissions in scope of employment.
When acting in the scope of his employment, the actions and omissions of a person acting for or employed by a carrier or shipper that is subject to §§ 49-16A-8 and 49-16A-9 are considered to be the actions and omissions of that person.
Source: SL 1980, ch 322, § 10.
49-16A-11. Venue of criminal prosecution.
Trial of a criminal action under §§ 49-16A-9 and 49-16A-10 shall be in the circuit court for the county in which any part of the violation was committed or through which the transportation was conducted.
Source: SL 1980, ch 322, § 11.
49-16A-19. Restraint of trade provisions applicable to railroads.
For the purposes of intrastate commerce, a railroad is not a regulated utility as defined in § 37-1-3.5 and is subject to the provisions of chapter 37-1.
Source: SL 1980, ch 322, § 19.
49-16A-20. Single-line rates as restraint of trade.
Except where permitted under federal law, membership of a railroad in any group, organization, or bureau, or an agreement for the purpose of discussing or establishing single-line rates, or the establishment of a single-line rate through such a membership or under the influence of such a membership by a railroad, is restraint of trade within the meaning of § 37-1-3.1.
Source: SL 1980, ch 322, § 20.
49-16A-21. Through rates, joint rates or joint through rates not restraint of trade unless intent or effect to monopolize.
Two or more railroads which establish through rates, joint rates, or joint through rates for intrastate commerce as required by § 49-16A-38 are not subject to § 37-1-3.1 unless the intent or effect is to violate § 37-1-3.2.
Source: SL 1980, ch 322, § 21.
49-16A-22. Pooling agreements as restraint of trade.
Any pooling agreement or arrangement among railroads or among railroads and other common carriers is a violation of §§ 37-1-3.1 and 37-1-3.2.
Source: SL 1980, ch 322, § 22.
49-16A-23. Common carrier obligations--Limitation.
The common carrier obligations of a railroad cannot be limited by general notice, but may be limited by special contract in writing.
Source: SL 1980, ch 322, § 23.
49-16A-24. Bill of lading or contract for carriage--Shipper's acceptance as assent to terms.
By accepting a bill of lading or written contract for carriage with knowledge of its terms, a shipper assents to the rate of hire and the time, place, and manner of delivery stated. His assent to any other modification of a railroad's rights or obligations contained in a bill of lading or other written contract can be manifested only by his signature to the same.
Source: SL 1980, ch 322, § 24.
49-16A-25. Lien for freightage.
A railroad has a lien for freightage which is regulated by the title on liens.
Source: SDC 1939, § 8.0508; SDCL, § 49-5-19; SL 1980, ch 322, § 25.
49-16A-26. Preference to federal and state governments.
A railroad must always give a preference in time and may give a preference in price to the United States and to this state for transportation of freight under a declaration of emergency by the Governor.
Source: SL 1980, ch 322, § 26.
49-16A-27. Gratuitous shipment by railroad without reward--Duties.
A railroad without reward is subject to the same rules as gratuitous employees unless otherwise provided by statute. A railroad must complete any undertaking it has commenced the same as if it had received reward, unless it restores the freight carried to as favorable a position as before carriage was commenced.
Source: SL 1980, ch 322, § 27.
49-16A-28. Directions of shipper--Conflicting directions--Delivery.
A railroad must comply with the directions of a shipper to the same extent that an employee must comply with those of his employer. If the directions are conflicting, the railroad must comply with those of the consignor on all matters except delivery of the freight. On delivery he must comply with directions of the consignee unless the consignor has specially forbidden the railroad to receive orders from the consignee inconsistent with his own.
Source: SDC 1939, § 8.0303; SDCL, § 49-5-3; SL 1980, ch 322, § 28.
49-16A-29. Delivery at nearest station absent usage to contrary.
If there is no usage to the contrary at the place of delivery, freight carried on a railroad may be delivered at the station nearest the place to which it is addressed.
Source: SDC 1939, § 8.0306 (1); SDCL, § 49-5-5; SL 1980, ch 322, § 29.
49-16A-30. Services other than carriage and delivery--Statutes governing.
In respect to any service rendered by a railroad transporting freight, other than its carriage and delivery, its rights and obligations are according to the statutes on deposit and employer and employee.
Source: SDC 1939, § 8.1007; SDCL, § 49-5-21; SL 1980, ch 322, § 30.
49-16A-31. Delivery to connecting carrier--Liability to final destination.
If a railroad accepts freight for a place beyond its usual route, it must, unless it stipulates otherwise, deliver the freight at the end of its route in that direction to another competent common carrier which goes to the place of address or is connected with other competent common carriers which go to the final destination. A railroad's liability does not cease until delivery of the freight has been made at its final destination.
Source: SDC 1939, § 8.1005; SDCL, § 49-5-26; SL 1980, ch 322, § 31.
49-16A-32. Railroad responsible for agents' acts.
A railroad, operating as a common carrier, is absolutely responsible for the acts of its agents while acting in the scope of their agency when transporting freight.
Source: SDC 1939, § 52.0246; SDCL, § 49-5-28; SL 1980, ch 322, § 32.
49-16A-33. Loss or injury of freight in possession of connecting carrier--Proof to shipper on demand.
If freight, addressed to a place beyond the usual route of the railroad which first received it, is lost or injured the railroad must, within a reasonable time after demand, give satisfactory proof to the shipper that the loss or injury did not occur while the freight was in its possession.
Source: SDC 1939, § 8.1006; SDCL, § 49-5-27; SL 1980, ch 322, § 33.
49-16A-34. Claim for loss, injury or overcharge--Railroad to respond within sixty days--Bill of lading or shipping receipt to accompany claim--Returns.
Every claim for loss or injury to property in any manner, or overcharge for freight, for which a railroad in this state is liable, shall be adjusted, paid in full, or rejected by such railroad within sixty days after a written claim, stating the amount and the nature thereof accompanied by the original or duplicate bill of lading or shipping receipt, showing the amount paid for or on account of the shipment, is filed with any claims agent of the railroad over whose road the shipment was made. The original or duplicate bill of lading or shipping receipt shall be returned to the complainant when the claim is rejected or the time limit has expired.
Source: SDC 1939, § 52.0251; SDCL, § 49-5-29; SL 1980, ch 322, § 34.
49-16A-35. Suit on claim--Interest--Attorney fee--Remedy cumulative.
If any claim described in § 49-16A-34 is not adjusted and paid within the time limited by § 49-16A-34, the railroad is liable for interest at the current maximum usury rate allowed by law from the date of the filing of the claim and may also be liable for a reasonable attorney fee at the court's discretion, all to be recovered by the shipper or other person in interest, in any court of competent jurisdiction. In bringing suit for the recovery of any such claim for loss or injury, if the shipper or other person in interest fails to recover a judgment in excess of the amount that may have been tendered in an effort to make settlement of the claim by the railroad, then such shipper or person in interest shall not recover the interest or attorney fee provided for in this section. The remedy afforded by this section is cumulative to any other provided by law.
Source: SDC 1939, § 52.0251; SDCL, § 49-5-30; SL 1980, ch 322, § 35.
49-16A-36. Notice of loss, injury or claim--Minimum time to be allowed--Contrary contractual provision void.
Any provision, stipulation, or condition in a contract for carriage or other agreement made or entered into by or between a railroad and the owner or shipper of any freight, which provides that written or verbal notice of loss or injury, or of a claim, shall be made or given to the railroad or to any agent or officer thereof, or to any other person within any period less than four months from the date of the occurrence of any such loss or injury, is void.
Source: SDC 1939, § 52.0252; SDCL, § 49-5-31; SL 1980, ch 322, § 36.
49-16A-37. Interchange facilities required--Discrimination between connecting roads prohibited--Switching and transferring cars.
All railroads subject to this chapter shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective roads, and for the receiving, forwarding, and switching of cars and the receiving, forwarding, and delivering of freight to and from their several roads and to and from other roads and places connected therewith, and shall not discriminate in their accommodations, rates, and charges between connecting roads. Each railroad is required to switch and transfer cars for another for the purpose of being loaded or unloaded.
Source: SL 1980, ch 322, § 37.
49-16A-38. Joint through rates required--Duty to receive and transport freight and cars.
All railroads doing business in this state shall establish reasonable joint through rates for the transportation of freight between points upon their respective lines within this state, and shall receive and transport freight and cars over such route or routes as the shipper may direct.
Source: SL 1980, ch 322, § 38.
49-16A-39. Carload lots--Transfer to connecting road without added charge.
Carload lots shall be transferred to a connecting railroad without charge, in addition to the quoted rate, to the shipper or receiver of such carload lots, and such transfer shall be made without unreasonable delay.
Source: SDC 1939, § 52.0221; SDCL, § 49-12-2; SL 1980, ch 322, § 39.
49-16A-40. Connecting roads--Intrastate shipments--Reasonable through rates--Same facilities as for interstate traffic.
When shipments of freight transported between different points within this state are required to be carried by two or more railroads operating connecting lines, such railroads shall transport the same at reasonable through rates and shall at all times give the same facilities to intrastate traffic as they give to interstate traffic over their lines.
Source: SDC 1939, § 52.0221; SDCL, § 49-12-4; SL 1980, ch 322, § 40.
49-16A-41. Routing instructions by shipper.
If freight is delivered to a railroad for transportation to a point of destination, between which and the point of delivery two or more published through routes and through rates have been established pursuant to this chapter, and to which through routes and through rates the railroad is a party, the person making the shipment may designate in writing by which of such routes the freight shall be transported to its destination. Thereupon it is the duty of the initial railroad to route such freight and issue a through bill of lading as directed, and to transport such freight over its own line or lines and deliver the same to a connecting line or lines according to such through route. Each of the connecting railroads shall receive such freight and transport it over the designated line or lines and deliver it to the next succeeding carrier or consignee according to the routing instructions in the bill of lading. The shipper shall in all instances have the right to determine, where competing lines of a railroad constitute portions of a through line or route, over which of the competing lines his freight shall be transported.
Source: SDC 1939, § 52.0245; SDCL, § 49-12-15; SL 1980, ch 322, § 41.
49-16A-42. Sale or lease of road, property, rights, privileges, and franchises authorized.
A railroad may sell or lease the whole or any part of its road within this state, constructed or to be constructed, together with all property, rights, privileges, and franchises appertaining thereto, to any railroad organized or existing pursuant to the laws of the United States or this state, or of any other state of the United States.
Source: SDC 1939, § 52.0808; SDCL, § 49-19-8; SL 1980, ch 322, § 42.
49-16A-43.1. Validation of defects in lease or sale made prior to January 1, 1994.
Any defect in any lease or sale of any railroad property by a railroad pursuant to the provisions of chapter 49-16A made prior to January 1, 1994, is hereby validated, legalized and cured, and as to any such sale the railroad's instrument of conveyance shall operate to convey and transfer title to the person or persons named as grantee or grantees in such instrument of conveyance all the right, title, and interest of the railroad and in and to such property. This section does not affect any action pending on July 1, 1994.
Source: SL 1987, ch 346, § 2; SL 1994, ch 348, § 3.
49-16A-43.2. Notice of sale of railroad property--Publication--Copy to be mailed to lessee.
Prior to any sale of railroad property, except to the South Dakota Railroad Authority or to another railroad, the owner of such property shall publish a notice that such property is to be sold. The notice shall be published in the official newspaper of the political subdivision where such property is located. The notice shall be published at least once each week for at least two consecutive weeks. A copy of the notice shall also be mailed to each lessee of such property by certified mail at least two weeks prior to such sale. The notice shall contain a description of the property to be sold and the location for information concerning the sale.
Source: SL 1988, ch 373, § 2.
49-16A-44. Report annually to department--Special reports and specific questions.
In addition to any reports required to be filed with the secretary of state under Title 47, each railroad doing business in this state shall file its annual report, including the state supplement thereto and an inventory of all capital expenditures for state improvement projects, with the Department of Transportation. The department may, as it deems just and necessary for its information, require a railroad to file, within reasonable specified time limitations, special reports and answers to specific questions related to the planning and structuring of railroads operating within this state.
Source: SL 1980, ch 322, § 43.
49-16A-45. Inspection of roads by department.
Upon reasonable notice the Department of Transportation may inspect the roads of any railroad operating in this state.
Source: SL 1980, ch 322, § 44.
49-16A-46. Transfer of certain Public Utilities Commission functions to transportation department.
All functions of the Public Utilities Commission relating to the initiation, prosecution, intervention, defense, or appearance in any proceeding before any court, commission, board, tribunal, or agency, whether such functions are on behalf of the State of South Dakota or otherwise, and where such function relates to the abandonment, consolidation, merger, or inclusion of any railroad or part of a railroad are transferred to the Department of Transportation.
Source: SL 1979, ch 311, § 2; SDCL Supp, § 49-21-37; SL 1980, ch 322, § 45; SL 1990, ch 372, § 10.
49-16A-47. Department as sole representative of state in abandonment, consolidation, merger and inclusion proceedings--Attorney general's duties--Rights not impaired.
The Department of Transportation has the exclusive power to appear before any court, commission, board, tribunal, or agency as the representative of the State of South Dakota in any proceeding relating to the abandonment, consolidation, merger, or inclusion of any railroad, whenever, in the judgment of the department, the welfare of the state or the public interest so demands. The attorney general shall provide legal counsel as is necessary to assist the department to perform these functions. However, §§ 49-16A-46 to 49-16A-49, inclusive, shall not be interpreted so as to impair the right of any natural or legal person or persons, or anyone on their behalf, to have such representation as they deem fit of their own respective interests in any such proceeding.
Source: SL 1979, ch 311, § 1; SDCL Supp, § 49-21-38; SL 1980, ch 322, § 46.
49-16A-48. Department of transportation--Interstate commerce violations--Duties.
Whenever a resident of this state files a petition with the Department of Transportation, directed to the Interstate Commerce Commission of the United States, charging a railroad doing business in this state and engaged in interstate transportation of freight, with a violation of the Interstate Commerce Act of the United States, relating to abandonment, consolidation, merger, or inclusion, setting forth in the petition the facts constituting a violation, the department, if it deems the matter to be one of public interest, shall file the petition with the interstate commerce commission and appear in the matter in the place of the petitioner and prosecute the same at the expense of the state. Whenever the department determines that it is in the best interests of the State of South Dakota or its people, it may appear before the interstate commerce commission as a party in all proceedings relating to abandonment, consolidation, merger, or inclusion.
Source: SL 1979, ch 311, § 3; SDCL Supp, § 49-21-39; SL 1980, ch 322, § 47.
49-16A-49. Department of Transportation--Appearance before interstate commerce commission.
Whenever a matter is pending before the Interstate Commerce Commission of the United States, between a resident of this state as a petitioner and a railroad doing business in this state and engaged in interstate transportation of freight, charging such railroad with a violation of the Interstate Commerce Act, relating to abandonment, consolidation, merger, or inclusion, the Department of Transportation, after it determines that the questions involved are of public interest, may appear therein and be substituted as a party in place of the petitioner. Thereafter the matter shall be prosecuted by the department at the expense of the state in the same manner as though originally begun by it.
Source: SL 1979, ch 311, § 4; SDCL Supp, § 49-21-40; SL 1980, ch 322, § 48.
49-16A-50. Powers--Construction, operation and maintenance of roads across, along or over watercourses and highways--Overpasses and underpasses--Changing course of highway--Taking land.
Each railroad authorized to construct, operate, or maintain roads within this state, subject to the provisions of this chapter, may construct its roads across, along, or upon any stream of water, watercourse, street, highway, toll road, turnpike, levee, river front, or public landing, or canal, which its route intersects or touches; may carry any highway, street, toll road, or turnpike which it touches, intersects, or crosses, over or under its track, as may be most expedient for the public good; and may change the course or direction of any highway, street, turnpike, or toll road when made necessary or desirable to secure more easy ascent or descent by reason of any embankment or cut made in the construction of its roads, and take land necessary therefor, provided that such highway or road is not changed from its original course by more than ninety-nine feet, nor its distance lengthened for more than eighty-two and one-half feet.
Source: SDC 1939, § 52.0801 (5); SDCL, § 49-16-10; SL 1980, ch 322, § 49.
49-16A-51. Powers--Crossing, intersecting and connecting railroads--Failure of railroads to agree--Alteration of grade or location.
Each railroad authorized to construct, operate, or maintain a road within this state, may cross, intersect, join, and unite its road with any other railroad's previously constructed road, at any point on its route and upon the grounds of the other railroad, with the necessary turnouts, sidings, and switches, and other conveniences to further the objects of its connections. Each railroad whose road is intersected by any other railroad's new road shall unite with the other railroad to form such intersections and connections, and grant such facilities. If the railroads cannot agree upon the amount of compensation to be made, or the points and manner of the crossings and connections, the issue shall be determined by the circuit court. But no railroad which obtained a right of way and constructed its road at the point of intersection, before the application for such determination to the court was made, shall be required to alter the grade or change the location of its road.
Source: SDC 1939, § 52.0801 (6); SDCL, § 49-16-11; SL 1980, ch 322, § 50.
49-16A-52. Powers--Equal privileges for tracks on landings and within municipalities--Failure of railroads to agree.
Each railroad authorized to construct, operate, or maintain a road within this state, may have and use equal room, ground, rights, privileges, and conveniences for its tracks, switches, sidings, and turnouts on any levee, river bank or front, or public landing, and on any street, block, alley, square, or public ground within an incorporated municipality, any charter or ordinance of any municipality to the contrary notwithstanding. To accomplish this, it may adjust, with other railroads, the ground to be occupied by each with such tracks, switches, sidings, and turnouts. If the railroads cannot agree upon an adjustment or reasonable compensation for damages caused by the adjustment, the adjustment and compensation shall be determined by the circuit court.
Source: SDC 1939, § 52.0801 (7); SDCL, § 49-16-12; SL 1980, ch 322, § 51.
49-16A-53. Changing grade or location for convenience of public travel.
If a railroad finds it necessary, for the purpose of avoiding annoyance to public travel, or dangerous or difficult curves or grades, or unsafe or unsubstantial grounds or foundations, or for other reasonable causes, to change the grade or location of any portion of its road, it may make such changes of grade and location not departing from its general route.
Source: SDC 1939, § 52.0807; SDCL, § 49-19-19; SL 1980, ch 322, § 52.
49-16A-54. Liability for damages from change--Time for damage claim--Notice--Nonresidents.
A railroad is liable in damages, for injury which may have been caused by a change made pursuant to § 49-16A-53, to the owner of real property upon which such road was previously constructed, to be ascertained and paid, or deposited in case of an original location of a road. No damages shall be allowed unless claimed within ninety days after actual notice, in writing, of the intended change is given to an owner residing on the premises, or if the owner is a nonresident, the notice is made by publication in a newspaper of general circulation.
Source: SDC 1939, § 52.0807; SDCL, § 49-19-21; SL 1980, ch 322, § 53.
49-16A-55. Authorization to use public lands--Damage to occupant.
Each railroad is authorized to pass over, occupy, and enjoy all the public land, to the extent and in the manner prescribed by the act of Congress approved March 3, 1875. Any damages accruing to an occupant or possessory claimant, or other person who may reside on or have improvements upon such public land, shall be determined and paid for by the railroad the same as is provided for owners of private lands.
Source: SDC 1939, § 52.0815; SDCL, § 49-20-4; SL 1980, ch 322, § 54.
49-16A-56. Authorization to use school or public lands--Width of right-of-way.
Each railroad authorized to construct a road in this state may locate and construct the road across any of the school or other public lands of the state, and may, for that purpose, hold, occupy, and enjoy a right-of-way therefor, fifty feet on each side of the center of the track of the road, and extra width as may be necessary for cuts, embankments, gravel pits, and other works of the road, or for the protection of the road from snow, subject to the approval of the Governor.
Source: SDC 1939, § 52.0816; SDCL, § 49-20-5; SL 1980, ch 322, § 55.
49-16A-57. Plat of proposed road filed with commissioner of school and public lands--Duplicate to register of deeds.
Each railroad authorized to construct a road in this state, that has surveyed its road, shall cause a plat of the road, clearly indicating the boundary line of the right-of-way and area in acres and fractions, to be certified by its chief engineer or president, and acknowledged, and filed with the commissioner of school and public lands, and a duplicate with the register of deeds of each county in which the land is situated.
Source: SDC 1939, § 52.0816; SDCL, § 49-20-6; SL 1980, ch 322, § 56.
49-16A-58. Issuance of certificate reserving school and public lands for railroad.
The commissioner of school and public lands shall, upon the filing in his office by any railroad of a map of its road across any of the school or public lands, issue to that railroad a certificate stating that such lands have been reserved for its use. The certificate shall operate as authority to the railroad to take, hold, and use such lands for the purposes of its railroads.
Source: SDC 1939, § 52.0816; SDCL, § 49-20-7; SL 1980, ch 322, § 57.
49-16A-59. Filing as vesting right to use--Duration of right--Forfeiture for failure to use.
The filing with the commissioner of school and public lands of the map required by § 49-16A-58 authorizes the railroad, for one year from the filing date, to enter upon the land so surveyed and selected and construct a road thereon. If the railroad does not construct its road across the land within one year after the filing of the map, it forfeits all rights acquired by the filing of the map.
Source: SDC 1939, § 52.0816; SDCL, § 49-20-8; SL 1980, ch 322, § 58.
49-16A-60. Deed from Governor after construction of road and payment for land taken--Ascertaining value of land.
As soon as a road is constructed over such school and public lands, proven to the satisfaction of the Governor, and upon paying the full value of the lands taken, such value to be ascertained by the commissioner of school and public lands or, in the event of disagreement, by the circuit court in the manner provided for a condemnation proceeding, the Governor shall convey by deed of right of way, to the railroad constructing the road, the right to hold and use the lands for purposes authorized by this chapter. The deed shall be executed in the name of the state by the Governor, under the great seal of the state, and attested by the commissioner of school and public lands, under the seal of his office.
Source: SDC 1939, § 52.0817; SDCL, § 49-20-9; SL 1980, ch 322, § 59.
49-16A-61. Title relates back to filing--Subsequent grants invalid.
The title vested by the Governor's deed to such lands shall relate back to the date of the filing of the map with the commissioner of school and public lands pursuant to § 49-16A-58. No subsequent grant from the state to any other person of any tract of land shall divest the railroad of its rights authorized by this chapter.
Source: SDC 1939, § 52.0817; SDCL, § 49-20-10; SL 1980, ch 322, § 60.
49-16A-62. Other rights-of-way across deeded lands.
Nothing in this chapter shall be so construed as to prevent any other person from obtaining the right to enter upon and cross school or other public lands of the state and to maintain his right-of-way across or along such lands.
Source: SDC 1939, § 52.0817; SDCL, § 49-20-11; SL 1980, ch 322, § 61.
49-16A-63. Maps kept by commissioner of school and public lands--Noting and reserving right-of-way.
The commissioner of school and public lands shall note on the maps in his office each legal subdivision of school or other public lands crossed by any road and their location. In disposing of such lands the commissioner shall reserve the right-of-way for the use of the railroad by appropriate description.
Source: SDC 1939, § 52.0819; SDCL, § 49-20-13; SL 1980, ch 322, § 62.
49-16A-64. Plat of proposed road filed with department--Grant of permit to construct road.
Any railroad planning to construct a road in this state, and having otherwise complied with all appropriate laws, shall file with the Department of Transportation a plat of the road proposed to be constructed, stating the principal points through which it is planned to construct the road. The department shall, if satisfied that the road is desirable and that there is a probability that it will be constructed, grant a permit to the railroad to construct the road.
Source: SDC 1939, § 52.0805; SDCL, § 49-19-1; SL 1980, ch 322, § 63.
49-16A-65. Factors considered in assessing plat.
The Department of Transportation may, when assessing a plat submitted pursuant to § 49-16A-64, consider all factors it deems relevant, including existing transportation facilities, their structure, physical condition, and location.
Source: SL 1980, ch 322, § 64.
49-16A-66. Publicly constructed or acquired railroads as public highways.
All roads constructed or acquired by the state or any political subdivision for use by a railroad are works of public necessity and importance and are public highways.
Source: SL 1980, ch 322, § 65.
49-16A-69. Drainage necessitated by defect in railroad construction--Assessment of entire expense against railroad--Assessment against complainant or apportionment in other costs.
If it appears that the necessity for the drainage of land adjacent to the right-of-way of a railroad is caused by the failure of the railroad to have a sufficient opening in its embankment or any other defect in construction, then the expense of the drainage shall be assessed wholly against the railroad; otherwise it shall be assessed against the complainant, except where the necessity for the drainage is partly attributed to the railroad. In that event the expense shall be apportioned between the railroad and the complainant in an equitable manner.
Source: SDC 1939, § 52.0830; SDCL, § 49-20-18; SL 1980, ch 322, § 68.
49-16A-71. Extension of fireguards along right-of-way--Condemnation procedure--Petition.
Whenever a railroad owning or operating any road in this state, and authorized by law to exercise the right of condemning private property, deems it necessary to extend a fireguard along a road or any part of the road, and beyond the limits of the right-of-way of the railroad, it may do so, and for that purpose shall proceed in extending the fireguards in the manner provided by law pertaining to condemnation proceedings. The petition filed shall describe the desired fireguard and give any other particulars necessary to the determination of all the questions involved in the proceedings.
Source: SDC 1939, § 52.0821; SDCL, § 49-20-20; SL 1980, ch 322, § 70.
49-16A-72. Extension of fireguards on unoccupied land--Right to burn--Maximum width.
Any railroad within this state deeming it necessary to extend its fireguards may, for that purpose, enter upon any unoccupied land belonging to the state and burn a strip of land not exceeding two hundred feet in width on either side of its right of way.
Source: SDC 1939, § 52.0822; SDCL, § 49-20-21; SL 1980, ch 322, § 71.
49-16A-73. Facilities for transferring freight or cars between railroads--Department's directions--Sharing of costs.
Upon application of any interested person the Department of Transportation shall direct the manner in which railroads provide facilities for transferring cars or freight from one railroad's road to another. Each connecting railroad shall pay its proportionate share of the building and maintenance of the tracks and switches necessary to furnish the transfer facilities required by the department.
Source: SDC 1939, § 52.0242; SDCL, § 49-21-14; SL 1980, ch 322, § 72.
49-16A-74. Facilities for transferring freight or cars between railroads--Judicial apportionment of costs.
In case the connecting railroads cannot agree on the amount which each railroad shall pay pursuant to § 49-16A-73, then the amount shall, upon application of either party, be determined by the circuit court for the county where transfer facilities are furnished.
Source: SDC 1939, § 52.0242; SDCL, § 49-21-15; SL 1980, ch 322, § 73.
49-16A-75. Eminent domain power--Authorization by Governor or commission required--Hearing on application.
A railroad may exercise the right of eminent domain in acquiring right-of-way as provided by statute, but only upon obtaining authority from the Governor or if directed by the Governor, or the commission, based upon a determination by the Governor or the commission that the railroad's exercise of the right of eminent domain would be for a public use consistent with public necessity. The Governor or the commission shall consider the requirements of §§ 49-16A-75.1 to 49-16A-75.3, inclusive, when granting or denying an application for authority to use eminent domain. The decision to grant or deny an application shall be made after reasonable notice and opportunity to be heard, pursuant to chapter 1-26. However, an impartial hearing examiner may be appointed by the Governor or the commission to administer the proceedings or make recommendations. Any parties who are united in interest or representation shall unite in the filing of an affidavit for change of hearing examiner under the provisions of § 1-26D-10. The filing of such affidavit by one party is deemed to be filed by all of the parties. No more than one change of hearing examiner may be granted on request or affidavit made by or on behalf of the same party or parties united in interest under the provisions of § 1-26D-10. However, the filing of an affidavit and the first change of hearing examiner does not prevent any other party to the action or any party's attorney from obtaining a change in hearing examiner upon a showing of an unacceptable risk of actual bias or prejudice concerning a party. The Governor or the chair of the commission shall replace the hearing examiner within five business days upon any recusal. A hearing shall be held and a decision rendered on any application within ninety days following the receipt of a new application and upon any application pending before the Governor or the commission on July 1, 2008.
The denial or withdrawal of an application does not prejudice the ability of a railroad to resubmit an application. Any appeal, pursuant to chapter 1-26, taken from a decision of the Governor or the commission shall be handled as an expedited appeal by the courts of this state.
Source: SL 1980, ch 322, § 74; SL 1999, ch 222, § 4; SL 2008, ch 238, § 1.
49-16A-75.1. Commission to promulgate rules for railroad seeking to exercise eminent domain.
The commission shall in accordance with chapter 1-26, promulgate rules:
(1) Establishing a form upon which a railroad may apply for authority to exercise the right of eminent domain;
(2) Specifying the information to be submitted by an applicant; and
(3) Administering applications for authority to exercise the right of eminent domain.
Source: SL 1999, ch 222, § 5.
49-16A-75.2. Railroad carries burden of proof to show public necessity.
The applicant has the burden of proving by a preponderance of the evidence that the exercise of the right of eminent domain is a public use consistent with public necessity.
Source: SL 1999, ch 222, § 6.
49-16A-75.3. Determination of public use consistent with public necessity--Appeal.
A railroad's exercise of the right of eminent domain is a public use consistent with public necessity only if the use of eminent domain is proposed by an applicant who has negotiated in good faith to privately acquire sufficient property without the use of eminent domain. No determination of public use or necessity or any other issue properly decided by the Governor or the commission may be addressed by the circuit court in an action for condemnation. Such a determination may only be challenged upon direct appeal of that determination. Notwithstanding appeal of such determination, the railroad may proceed at any time by action in circuit court for possession and determination of compensation for any real property taken or damaged.
Source: SL 1999, ch 222, § 7; SL 2006, ch 232, § 1; SL 2008, ch 238, § 2.
49-16A-75.4. Proceedings to establish compensation--Physical possession.
Upon a failure to reach agreement on compensation following a determination pursuant to § 49-16A-75.3, either party may bring a proceeding in state court to establish compensation to be paid for the property taken or damaged. The court shall expedite the proceedings. A railroad is not entitled to physical possession of the property to be taken pursuant to the exercise of eminent domain except upon the earlier to occur of either:
(1) Execution of a written agreement between the parties as to fair market value of compensation;
(2) Entry of a judgment of condemnation in the circuit court; or
(3) Upon posting by the railroad of a bond to be established by the court as soon as possible but no later than one hundred twenty days following petition by the railroad for possession. The bond shall be in an amount the court determines to be a preliminary estimate of compensation based on the best information available, but is not determinative of final compensation or admissible as evidence thereon.
Source: SL 2008, ch 238, § 3.
49-16A-76. Powers--Acceptance of voluntary grants for railroad purposes.
Each railroad authorized to construct, operate, or maintain a road within this state, may take and hold such voluntary grants of real and other property as are made to it, to aid in the construction, maintenance, and accommodation of its road. Any real property received by voluntary grant shall be held and used for the purposes of the grant only.
Source: SDC 1939, § 52.0801 (2); SDCL, § 49-16-7; SL 1980, ch 322, § 75.
49-16A-77. Powers--Width of right-of-way--Additional land for proper construction--Compensation for lands taken.
Each railroad authorized to construct, operate, or maintain a road within this state, may lay out a road not exceeding one hundred feet in width, and construct it. For the purpose of cuttings and embankments and of obtaining gravel or other material, the railroad may take as much land as may be necessary for the proper construction, operation, and security of the road, and for the protection of the road from snow, and may cut down any standing trees that may be in danger of falling on the road. The railroad shall provide compensation, as provided by law, for lands taken for the use of a railroad.
Source: SDC 1939, § 52.0801 (4); SDCL, § 49-16-9; SL 1980, ch 322, § 76.
49-16A-78. Entries upon land--Appropriation of land--Purposes of appropriation.
Each railroad authorized to construct, operate, or maintain a road within this state may enter upon any land for the purpose of examining and surveying its road, and may take, hold, and appropriate so much real property as may be necessary for the location, construction, and convenient use of its road, including all necessary grounds for buildings, stations, workshops, depots, machine shops, switches, sidetracks, snow defenses, and water stations. It may take all materials for the construction of the road and its appurtenances, and the right of way over adjacent land sufficient to enable the railroad to construct and repair its road. The railroad may obtain the right to such real property by purchase or condemnation in the manner provided by law.
Source: SDC 1939, § 52.0811; SDCL, § 49-20-1; SL 1980, ch 322, § 77.
49-16A-79. Condemnation for spur tracks to serve industry.
Each railroad owning, leasing, or operating a road in this state may condemn property for the right-of-way of spur tracks designed to reach or serve industries or industrial enterprises, such as mills, mines, smelters, factories, warehouses, and other manufacturing and industrial enterprises, for which freight train service is not performed.
Source: SDC 1939, § 52.0825; SDCL, § 49-22-11; SL 1980, ch 322, § 78.
49-16A-80. Entry and appropriation for changing location or grade--Surveys.
For the purpose of making any change in the location and grades of a road pursuant to § 49-16A-79, a railroad has all the rights, powers, and privileges to enter upon and appropriate such real property and make surveys necessary to effect such changes and grades, upon the same terms and subject to the same obligations, rules, and regulations as are prescribed by law.
Source: SDC 1939, § 52.0807; SDCL, § 49-19-20; SL 1980, ch 322, § 79.
49-16A-81. Right to use public way--Agreement with local authorities--Appropriation by railroad upon failure to agree.
If it is necessary for a road to occupy a road, street, alley, or public way, or ground of any kind, the municipal or other corporation, or public officer or public authorities owning or having charge thereof, and the railroad, may agree on the manner, terms and conditions on which the same may be used or occupied. If the parties are unable to agree and it is necessary, in the judgment of the railroad, to use or occupy such road, street, alley, or other public way or ground, the railroad may appropriate so much of the same as may be necessary for the purposes of its road, in the same manner and on the same terms as provided in this chapter for the appropriation of the property of individuals.
Source: SDC 1939, § 52.0823; SDCL, § 49-20-15; SL 1980, ch 322, § 80.
49-16A-82. Purchase of land--Failure to agree upon price--Determination by circuit court.
A railroad may purchase and use real property for a price to be agreed upon with its owners. The damages to be paid for any real property taken, when not agreed on, shall be determined by the circuit court for the county where the real property is situated, in conformity with the law pertaining to condemnation proceedings.
Source: SDC 1939, § 52.0813; SDCL, § 49-20-2; SL 1980, ch 322, § 81.
49-16A-83. Railroad-highway grade crossings.
The Department of Transportation may require and regulate construction of railroad and highway crossings as provided by chapter 31-27.
Source: SDC 1939, § 52.0910; SDCL, § 49-20-22; SL 1976, ch 294, § 24; SL 1980, ch 322, § 82.
49-16A-84. Authority to change grade of highway--Particular highways--Maintenance of highway--Maximum grade.
A railroad may raise or lower any public highway, not within the limits a municipality, for a railroad crossing, by petitioning the board of county commissioners, if the place is not a part of the state highway system, or by petition to the Department of Transportation if it is a part of the state system, but must guarantee to place and keep it in as good repair and condition as before the alteration was made, at its own expense. The grade approaching the crossing shall not exceed ten percent at any point thereof.
Source: SDC 1939, § 52.0828; SDCL, § 49-19-23; SL 1980, ch 322, § 83.
49-16A-85. Temporary routes during change of grade construction.
A railroad, while raising or lowering a public highway, or while making any other alterations which obstruct a public highway, shall provide and keep suitable temporary ways in good order to enable traffic to avoid or pass the obstruction.
Source: SDC 1939, § 52.0828; SDCL, § 49-19-24; SL 1980, ch 322, § 84.
49-16A-86. Private farm crossings--Cattle guards--Duty to keep gates closed--Liability of railroad.
A railroad owning or operating a road in this state, which is constructed across the land of any person leaving a portion of the premises on each side of its right-of-way, shall, when ordered to by the Department of Transportation, make and keep in good repair a private farm crossing or other causeway over its right-of-way, and upon like order shall construct and maintain safe and adequate cattle guards and wing fences for the private farm crossings. The owner or lessee of the land shall keep the gates for such private farm crossing closed except when in actual use. A railroad is not liable to the owner or lessee of such land for any loss or damage sustained to his property by reason of a failure to keep the gates closed.
Source: SDC 1939, § 52.0909; SDCL, § 49-19-26; SL 1980, ch 322, § 85; SL 1984, ch 216, § 4.
49-16A-87. Crossing standards--Warning sign.
Each railroad shall construct at all points where its road crosses any public road, good, sufficient, and safe crossings and shall erect at such points, at a sufficient elevation from the road to admit free passage of vehicles of every kind, a sign with large and distinct letters giving notice of the proximity of the road and warning persons of the necessity for looking out for trains.
Source: SDC 1939, § 52.0923; SDCL, § 49-25-16; SL 1980, ch 322, § 86.
49-16A-88. Warning signs--Erection by county commissioners at expense of railroad.
If a railroad refuses or neglects, for more than thirty days after notice given by a board of county commissioners, to comply with the provisions of § 49-16A-87, it is the duty of the board to erect the signs, and the railroad is liable for all expenses so incurred by the board.
Source: SDC 1939, § 52.0923; SDCL, § 49-25-18; SL 1980, ch 322, § 87.
49-16A-89. Crossings--Erection of lighting or alarms at order of department.
If, in the opinion of the Department of Transportation, it is necessary for the safety and protection of the public that street crossings over railroad tracks be lighted or street crossing alarms be installed to notify the public of approaching trains, the department shall order the railroad over whose road such street crosses to install crossing alarms or order the crossings to be lighted, or order both alarms and lighting by the railroad in a manner and method as, in the opinion of the department, will be the most suitable for the protection of the public.
Source: SDC 1939, § 52.0927; SDCL, § 49-25-15; SL 1980, ch 322, § 88; SL 1984, ch 216, § 5.
49-16A-89.1. Erection of stop signs until alarms or lighting operational.
If the Department of Transportation orders a railroad to install crossing alarms or orders a crossing to be lighted pursuant to § 49-16A-89, the department shall erect and maintain stop signs, which conform with standards found in the manual on uniform traffic control devices, at the crossing from the time of issuance of the order until such time as the alarms or lighting have been installed and are operational.
Source: SL 1987, ch 347.
49-16A-89.2. Alarm or lighting device required where railroad crosses state trunk highway system.
Any railroad tracks over which an operating train travels which crosses a portion of the state trunk highway system, as defined in chapter 31-4, shall have a crossing alarm or a lighting device, or both, to alert the public of approaching trains and to notify the public of trains crossing the highway. The crossing alarm or lighting device shall be in place by December 31, 1998. The Department of Transportation shall decide the method which is most suitable for the protection of the public. The Department of Transportation shall use any federal highway safety funds to pay for the crossing alarms and lighting devices. However, if federal highway safety funds are not available, the railroad owning or operating the tracks is liable for the expenses of the crossing alarm or lighting device.
Source: SL 1996, ch 272.
49-16A-90. Tampering with light or signal--False light or signal--Felony.
Any person who unlawfully masks, alters, or removes a light or signal, or intentionally exhibits a false light or signal with intent to bring a locomotive, railroad car, or train of cars into danger is guilty of a Class 4 felony.
Source: SDC 1939, § 13.1621; SDCL, § 49-25-19; SL 1980, ch 322, § 89; SL 1983, ch 15, § 110.
49-16A-91. Fenced lands--Duty of railroad to fence along right-of-way--Type of fence--Maintenance.
If the owner of a tract of land abutting on a road within this state plans to inclose the tract and constructs a good and sufficient fence about the tract on all sides except along the side abutting the road, the railroad shall supply the landowner with the materials needed to construct a fence not less than four and one-half feet high. If the owner incloses a tract of land with a woven wire fence with wires crossing each other close enough to keep sheep and hogs confined, the railroad shall supply the landowner with the materials needed to construct a like fence along its right-of-way on the side of the tract so far as it extends along the road. The railroad shall maintain or supply the materials to maintain the fence in good repair and condition until released by the owner of the tract, or until the owner of the tract ceases to maintain his portion of the fence in good repair and condition for one year.
Source: SDC 1939, § 52.0910; SDCL, § 49-20-22; SL 1976, ch 294, § 24; SL 1980, ch 322, § 90.
49-16A-92. Notice to railroad to erect fence--Contents of notice--Time for compliance.
If the owner of a tract of land has completed his portion of the fence around the proposed inclosure, he shall give written notice of its completion to the railroad on whose road the tract is situated, by service on the railroad describing in the notice the situation of the tract and the appropriate number of acres to be inclosed and the length of the fence required along the line of the railroad to complete the proposed inclosure.
The railroad shall supply the materials needed to construct and complete its portion of the fence within forty-five days after the service of the notice.
Source: SDC 1939, § 52.0911; SDCL, § 49-20-23; SL 1976, ch 294, § 25; SL 1980, ch 322, § 91.
49-16A-93. Fencing right-of-way--Noncompliance by railroad--Construction by owner--Liability of railroad.
If a railroad neglects or refuses to comply with the requirements of §§ 49-16A-91 and 49-16A-92, the owner of the tract may construct or repair the fence along the road, and the railroad is liable to the owner for an amount not exceeding the actual cost of all materials used in the construction or repair of the fence of like construction but excluding all cost of labor, which may be recovered in a civil action. The railroad is also liable for all damages accruing by reason of its neglect or refusal. However, a railroad is not required to build fences nor be liable for any damages for refusal to build fences when the earth is frozen.
Source: SDC 1939, § 52.0912; SDCL, § 49-20-24; SL 1969, ch 199; SL 1976, ch 294, § 26; SL 1980, ch 322, § 92.
49-16A-94. Blocking of highway crossings--Employees not liable where blocking necessary under state or federal rules.
No railroad employee shall be held liable for any railroad engine or cars occupying or blocking any street, road, or highway grade crossing where such occupying or blocking is necessitated or required in order to comply with a rule, regulation or order issued by any state or federal regulatory body.
Source: SL 1977, ch 388; SDCL Supp, § 49-24-18; SL 1980, ch 322, § 93.
49-16A-96. Bridges and abutments--Maintenance.
Each railroad shall maintain and keep in good repair all of its bridges and their abutments.
Source: SDC 1939, § 52.0829; SDCL, § 49-19-27; SL 1980, ch 322, § 95.
49-16A-98. Restoration and maintenance of watercourses and highways affected by railroad construction.
Each railroad shall restore every stream of water, watercourse, street, highway, toll road, turnpike, or canal, across, along, or upon which its road is constructed, to its former state or to such condition as that its usefulness is not materially impaired, and shall maintain the same in such condition against any effects produced by such railroad.
Source: SDC 1939, § 52.0907; SDCL, § 49-19-28; SL 1980, ch 322, § 97.
49-16A-100. Utility poles and wires on right-of-way--Commission to regulate.
The Public Utilities Commission shall make rules and regulations for the setting of poles on railroad right-of-way, and the stringing or suspending of telephone, telegraph, electric, or other wires over the track of railroads.
Source: SDC 1939, § 52.0258; SDCL, § 49-7-3; SL 1980, ch 322, § 99.
49-16A-100.1. Right of utilities to cross over or under railroad right-of-way--Fee--Regulation and negotiation.
Each electric utility, public utility, gas utility, municipal utility, municipal power agency, joint action agency, consumers power district, pipeline company, telecommunications company, and rural water system has the right to cross over or under the railroad right-of-way for the placement of facilities, upon payment of a reasonable fee, subject to reasonable regulation and negotiation in good faith as to location, placement, and compensation, when the placement of facilities is outside the public right-of-way.
Source: SL 2006, ch 232, § 2.
49-16A-100.2. Definitions relating to utility crossing of railroad right-of-way.
Terms used in §§ 49-16A-100.2 to 49-16A-100.10, inclusive, mean:
(1) "Railroad," any nonpublic association or corporation, or other entity, engaged in operating a common carrier by rail or any other entity responsible for the management of crossings or collection of fees for the railroad;
(2) "Rural water system," an entity engaged in the treatment, distribution, and sale of water to rural consumers that was created by chapters 34A-5, 46A-3A, or 46A-9 or any nonprofit corporation engaged in such activity;
(3) "Utility," electric utility, public utility, gas utility, municipal utility, municipal power agency, joint action agency, consumers power district, pipeline company, telecommunications company, and rural water system;
(4) "Crossing," the construction, operation, repair, or maintenance of a facility, over, under, or across a railroad right-of-way by a utility. The term does not include longitudinal occupancy of railroad right-of-way;
(5) "Facility," any item of personal property placed over, across, or underground for use in connection with the storage or conveyance of water; sewage; electronic, telephone, or telegraphic communications; fiber optics; cablevision; electric energy; oil; gas; hazardous liquids; or other substances including pipes, sewers, conduits, cables, valves, lines, wires, manholes, or attachments;
(6) "Special circumstances," includes the railroad crossing's relationship to other property, location of the crossing in urban or other developed areas, the existence of unique topography or natural resources, or other dangers inherent in the particular crossing.
Source: SL 2014, ch 217, § 9; SL 2016, ch 223, § 1.
49-16A-100.3. Notice and application for placement of utility facility across railroad right-of-way.
Any utility that intends to place a facility across a railroad right-of-way shall provide to the railroad notice of the placement at least thirty days before the placement. The notice shall include a completed crossing application, including a drawing showing the location of the proposed crossing and the railroad's property, tracks, and wires that the utility will cross. The utility shall submit the crossing application on a form provided or approved by the railroad, if available. The crossing application shall be sent to the railroad by certified mail, return receipt requested. The application shall be accompanied by the crossing fee as set forth in § 49-16A-100.5, and a certificate of insurance as required by § 49-16A-100.6.
Source: SL 2014, ch 217, § 1; SL 2016, ch 223, § 2.
49-16A-100.4. Commencement of construction across railroad right-of-way--Exception.
Thirty days after the receipt by the railroad of the completed crossing application, the fee, and certificate of insurance, the utility may commence the construction of the crossing, unless the railroad notifies the utility in writing that the proposed crossing is a serious threat to the safe operations of the railroad or to the current use of the railroad right-of-way. In all other instances the utility shall be deemed to have authorization to commence construction of the facility.
Source: SL 2014, ch 217, § 2; SL 2016, ch 223, § 3.
49-16A-100.5. Standard crossing fee--Flagging expense.
Unless otherwise agreed by the parties, a utility that crosses a railroad right-of-way, other than a crossing within the public right-of-way, shall pay the railroad a one-time standard crossing fee of seven hundred fifty dollars for each crossing. The standard crossing fee is in lieu of any license, permit, application, processing fee, or any other fees or charges to reimburse the railroad for the direct expenses incurred by the railroad as a result of the crossing. No other fee may be assessed by the railroad or by any railroad agent, contractor, or assignee to the utility or to any agent or contractor of the utility. The utility shall also reimburse the railroad for any reasonable and necessary flagging expense associated with a crossing, based on the railroad traffic at the crossing, in addition to the standard crossing fee. No crossing fee is required if the crossing is located within a public right-of-way.
Source: SL 2014, ch 217, § 3; SL 2016, ch 223, § 4.
49-16A-100.6. Certificate of insurance or coverage for utilities crossing railroad right-of-way .
The certificate of insurance or coverage submitted by a municipality shall include commercial general liability insurance or equivalent form with a limit of not less than one million dollars for each occurrence and an aggregate of not less than two million dollars. The certificate of insurance submitted by any other utility other than a gas or hazardous materials pipeline utility shall include commercial general liability insurance with a combined single limit of a minimum of two million dollars for each occurrence and an aggregate limit of at least four million dollars. The certificate of insurance submitted by a gas or hazardous materials pipeline utility shall include commercial general liability insurance with a combined single limit of a minimum of five million dollars for each occurrence and an aggregate limit of at least ten million dollars. The railroad may require protective liability insurance with a combined single limit of two million dollars for each occurrence and four million dollars aggregate. The coverage may be provided by a blanket railroad protective liability insurance policy if the coverage, including the coverage limits, applies separately to each individual crossing. The coverage shall be required only during the period of construction, repair, or replacement of the facility.
Source: SL 2014, ch 217, § 4; SL 2016, ch 223, § 5.
49-16A-100.7. Notice of objection by railroad--Petition for dispute resolution--Appeal.
If a railroad objects to the proposed crossing due to the proposal being a serious threat to the safe operations of the railroad or to the current use of the railroad right-of-way, the railroad shall provide notice of the objection and the specific basis of the objection to the utility by certified mail, return receipt requested. If the parties are unable to resolve the objection, either party may petition the Public Utilities Commission for resolution of the disputed crossing application within thirty days from receipt of the objection. Before filing a petition, the parties shall confer in good faith in an attempt to resolve the objection. If a petition is filed, the Public Utilities Commission, after notice and opportunity for hearing, must issue an order within sixty days of filing of the petition, during which time the crossing shall be stayed. The order may be appealed pursuant to chapter 1-26. The Public Utilities Commission shall assess its costs associated with a petition equitably against the parties.
Source: SL 2014, ch 217, § 5; SL 2016, ch 223, § 6.
49-16A-100.8. Additional requirements imposed by railroad--Objection by utility--Petition for resolution of objection--Appeal.
If a railroad asserts in writing by certified mail return receipt requested that special circumstances exist, or imposes additional requirements upon a utility for crossing its lines, other than the proposed crossing being a serious threat to the safe operations of the railroad or to the current use of the railroad right-of-way, the utility may object to one or more of the requirements. In such event, the utility shall provide notice of the objection and the specific basis of the objection to the railroad by certified mail, return receipt requested. If the parties are unable to resolve the objection, either party may petition the Public Utilities Commission for resolution of the objection within thirty days from receipt of the objection. Before filing a petition, the parties shall confer in good faith in an attempt to resolve the objection. If a petition is filed, the Public Utilities Commission, within ninety days of filing the petition, shall determine, after notice and opportunity for hearing, whether special circumstances exist that necessitate additional requirements for the placement of the crossing. The order may be appealed pursuant to chapter 1-26. The Public Utilities Commission shall assess its costs associated with a petition equitably against the parties.
Source: SL 2014, ch 217, § 6; SL 2016, ch 223, § 7.
49-16A-100.9. Existing agreements--Eminent domain.
Nothing in §§ 49-16A-100.2 to 49-16A-100.10, inclusive, prevents a railroad and a utility from continuing under an existing agreement or otherwise negotiating the terms and conditions applicable to a crossing or the resolution of any disputes relating to the crossing. Nothing in §§ 49-16A-100.2 to 49-16A-100.10, inclusive, impairs the authority of a utility to secure crossing rights by easement pursuant to the exercise of the power of eminent domain.
Source: SL 2014, ch 217, § 7.
49-16A-100.10. Application of §§ 49-16A-100.2 to 49-16A-100.9.
Sections 49-16A-100.2 to 49-16A-100.9, inclusive, apply to:
(1) Any crossing in existence before July 1, 2014 if an agreement concerning the crossing has expired or is terminated. In such instance, if the collective amount of seven hundred fifty dollars has been paid to the railroad during the existence of the crossing, no additional fee is required; and
(2) Any crossing commenced on or after July 1, 2014.
Source: SL 2014, ch 217, § 8.
49-16A-102. Railroad police--Appointment and employment by railroad.
A railroad organized under the laws of this state, or doing business within this state, may, at its own expense, appoint and employ policemen at stations or other places on its roads within this state for the protection of its property and the preservation of order on its premises, and in and about its cars, depots, depot grounds, yards, buildings, or other structures.
Source: SDC 1939, § 52.1201; SDCL, § 49-27-1; SL 1980, ch 322, § 101.
49-16A-103. Railroad police--Authority to arrest--Procedure on arrest without warrant.
Policemen employed pursuant to § 49-16A-102 have the authority to arrest, with or without warrant, any person who commits an offense against the laws of this state, or the ordinances of any municipality, when such offense has been committed on the premises of the railroad, or in and about its cars, depots, depot grounds, yards, buildings, or other structures. They also have the authority of law enforcement officers in regard to the arrest and apprehension of offenders in or about such premises. If an arrest is made by such a policemen without warrant, he shall immediately take the offender to a magistrate having jurisdiction of the offense, and file a complaint against the offender.
Source: SDC 1939, § 52.1201; SDCL, § 49-27-2; SL 1980, ch 322, § 102.
49-16A-104. Authority of regular law enforcement officers unaffected--Responsibility for acts of railroad police.
Nothing in § 49-16A-102 or 49-16A-103 shall be so construed as to restrict the lawful rights, powers, or privileges of a law enforcement officer within his respective jurisdiction. A railroad making an appointment pursuant to § 49-16A-102 is responsible for the acts of its policemen to the same extent as for the acts of any of its general agents or employees.
Source: SDC 1939, § 52.1201; SDCL, § 49-27-3; SL 1980, ch 322, § 103.
49-16A-105. Entry upon railroad equipment while armed a felony.
No person, either individually or as a member of any mob, band, or assembly, shall enter upon, occupy, or appropriate any part of a railway train or of railway equipment used or useful in the transportation of passengers or property, or in the maintenance or operation of any road in this state, armed with any instrument or weapon of any kind, for the purpose of committing any offense, or shall ride in any other than the usual, proper, and lawful manner at the legal rate of fare prescribed in the tariffs of the railroad, and in the proper coaches or cabooses provided for the purpose. A violation of this section is a Class 5 felony.
Source: SDC 1939, §§ 52.1204, 52.9921; SDCL, § 49-27-6; SL 1980, ch 322, § 104.
49-16A-106. Tampering with journal boxes a felony.
Any person who intentionally takes or removes the waste or packing or brass from any journal box of any locomotive, engine, tender, carriage, coach, caboose, or truck used or operated or capable of being used or operated on a railroad, is guilty of a Class 5 felony.
Source: SDC 1939, § 13.4514; SDCL, § 49-27-7; SL 1976, ch 294, § 34; SL 1980, ch 322, § 105.
49-16A-107. Malicious destruction of railroad property a felony.
Any person who maliciously removes, displaces, injures, or destroys any part of a railroad, any track of a railroad, any branch, switch, turnout, bridge, viaduct, culvert, embankment, station house, or other structure or fixture, or any part thereof, attached to or connected with a railroad, is guilty of a Class 6 felony.
Source: SDC 1939, § 13.4513 (1); SDCL, § 49-27-8; SL 1976, ch 294, § 35; SL 1980, ch 322, § 106.
49-16A-108. Malicious obstruction of tracks a felony.
Any person who maliciously places an obstruction on the rails or track of a railroad, or any branch, or turnout connected with a railroad, is guilty of a Class 6 felony.
Source: SDC 1939, § 13.4513 (2); SDCL, § 49-27-9; SL 1976, ch 294, § 36; SL 1980, ch 322, § 107.
49-16A-108.1. Application of §§ 49-16A-107 and 49-16A-108 to tourist railroad carrier.
The provisions of §§ 49-16A-107 and 49-16A-108 apply to a tourist railroad carrier. A tourist railroad carrier is any person who is engaged in the business of selling tickets or admission to transport passengers by rail in this state primarily as a visitor attraction and the person owns, leases, or uses a minimum of five miles of railroad track.
Source: SL 2016, ch 224, § 1.
49-16A-109. Punishment for malicious interference with railroad where death results.
If death results from any violation of § 49-16A-107 or 49-16A-108 the offender is guilty of a Class 5 felony.
Source: SDC 1939, § 13.4513; SDCL, § 49-27-10; SL 1980, ch 322, § 108.
49-16A-110. Insurance--Railroad may procure.
Each railroad owning or operating a road in this state has an insurable interest in the property on the route of the road owned or operated by it and may procure insurance on its own behalf for its protection against damages.
Source: SDC 1939, § 52.0941; SDCL, § 49-26-6; SL 1980, ch 322, § 109.
49-16A-111. Legislation relating to restraint of domestic animals or fences--Applicability to tracks.
No law of this state or resolution or ordinance of any county, township, or municipality relating to the restraint of domestic animals or to the fences of farmers or landowners, is applicable to railway tracks unless specifically so stated in such laws, resolutions, or ordinances.
Source: SL 1980, ch 322, § 110.
49-16A-112. Abandonment of right-of-way--Occupation for three years by other users.
At the time of abandonment of any railroad right-of-way, any corporation, partnership, individual, or political subdivision of this state, owning, operating or maintaining any telegraph, telephone, electric transmission or distribution lines, pipelines, water or sewer lines, buildings, grain elevators or other permanent fixtures on the abandoned right-of-way, may continue to occupy the right-of-way for a period of three years as provided in §§ 49-16A-113 and 49-16A-114.
Source: SL 1980, ch 326, § 1; SL 1981, ch 329, § 3; SL 1981, ch 330, § 1.
49-16A-113. Consideration for continued occupancy of right-of-way.
Continued occupancy of such right-of-way for such period of occupancy shall be for the same consideration provided for in any existing lease or license for occupancy of such right-of-way, and any person continuing to so occupy shall pay the same to the owner of the right-of-way.
Source: SL 1980, ch 326, § 2.
49-16A-114. Termination of right of occupancy unless right to continue acquired.
Unless the person occupying the right-of-way has acquired the right to continue such occupancy by lease, license, purchase, or condemnation within three years of date of abandonment, the right to such occupancy shall cease.
Source: SL 1980, ch 326, § 3; SL 1981, ch 330, § 2.
49-16A-115. Abandonment of right-of-way on public or Indian lands--Title claims.
A railroad which abandons service over, salvages and removes its rail, ties and other track material from any right-of-way in which it claims any right, title or interest in public lands, as prescribed by the act of Congress approved March 3, 1875, as amended, or in Indian lands as prescribed by the act of Congress approved March 2, 1889, as amended, or § 49-16A-55, shall settle title claims with adjoining landowners and municipalities within one year after salvage of the abandoned road is complete or title to the abandoned railroad right-of-way easement reverts and vests, by operation of law, pursuant to 42 Stat. 414 (March 8, 1922).
Source: SL 1981, ch 329, § 1.
49-16A-116. Municipal claim to reverter in railroad property--Quit claim authorized.
The governing body of any municipality which may have a claim to a reverter or possibility of reverter in railroad property acquired by the act of Congress approved March 3, 1875, as amended, and conveyed by the railroad, may without charge or consideration quit claim such interest as may have been established by 42 Stat. 414 (March 8, 1922) to current owners of record claiming title to said property.
Source: SL 1981, ch 329, § 2.
49-16A-117. Filing of certain records related to property conveyances by a railroad to a railroad.
Any conveyance or lease, deed of trust, mortgage, or satisfaction thereof made by any railroad in connection with the sale, lease or purchase of the whole or any part of its road within this state to or from another railroad may be executed and acknowledged in the same manner as conveyances of real property by corporations and may be recorded in the Office of the Secretary of State, who shall specify the day and hour of reception and the volume and page where recorded, which is evidence of such facts.
Source: SL 1986, ch 393, § 1.
49-16A-118. Effect of filing--Notice of rights and interests.
Each record of an instrument filed with the secretary of state pursuant to § 49-16A-117 shall, from the time of reception, have the same effect, as to any property described therein, as the record of any similar instrument in the office of a register of deeds, and is notice of the rights and interests of the grantee, lessee, or mortgagee to the same extent as if it were recorded in each of the counties in which any property described therein is situated.
Source: SL 1986, ch 393, § 2.
49-16A-119. Trains prohibited from blocking streets, roads or highways during emergency--Violation as misdemeanor.
A standing railroad engine or car may not occupy or block any street, road, or highway grade crossing for more than twenty consecutive minutes, if the path of any emergency vehicle making an emergency trip is blocked by the railroad engine or car, unless it is disabled, by accident or otherwise and cannot be moved without striking any object or person on track. A violation of this section by a railroad corporation is a Class 2 misdemeanor.
Source: SL 1994, ch 355.
49-16B-1
Legislative declarations--Public participation in railroad ownership and operation.
49-16B-2
Definitions of terms.
49-16B-3
Railroad authority created--Members.
49-16B-4
Authority attached to bureau of finance and management for reporting purposes--Exercise of functions.
49-16B-5
Repealed.
49-16B-6
Oath and bond of members.
49-16B-7
Per diem and expenses.
49-16B-8
Agents and employees.
49-16B-9
Seal.
49-16B-10
Projects authority may undertake.
49-16B-11
Report to legislature recommending projects.
49-16B-12
Transfer of jurisdiction or property to authority--Governor's approval.
49-16B-13
Acquisition of property--Construction and maintenance of railroad facilities.
49-16B-13.1
Approval of expenditures by railroad board and Governor.
49-16B-13.2
Maintenance of public railroad property by Department of Transportation.
49-16B-14
Department of Transportation's powers as to projects.
49-16B-15
Lease of facilities and sites.
49-16B-16
Lease terms, conditions and rentals.
49-16B-17
Leases to contain option to purchase--Purchase price.
49-16B-18
Lease provisions for lessee's payment of taxes, insurance and other costs.
49-16B-19
Leases to Department of Transportation--Rents payable solely from appropriations--Amount.
49-16B-20
Nonpayment of rent--Maintenance, operation, or lease of facilities.
49-16B-21
Rental and charges for facilities leased to other than Department of Transportation--Conveyance at conclusion.
49-16B-22
Tax exempt status of authority's property.
49-16B-23
Negotiable revenue bonds--Resolution for issuance--Legislative approval.
49-16B-24
Borrowing money and issuing bonds authorized--Refunding and refinancing--Pledge
of income and revenues.
49-16B-25
Bonds and notes--Resolution--Issuance--Terms.
49-16B-26
Bonds--Repayment from lease income and revenues from facilities financed.
49-16B-27
Bonds--Execution and registration--Officers' signatures.
49-16B-28
Bonds--Statements on face.
49-16B-29
Obligation of state not authorized.
49-16B-30
Contract with holders--Enforcement.
49-16B-31
Interim notes--Purposes for which authorized.
49-16B-32
Interim notes--Issuance pursuant to resolution--Contents of resolution--Extending
maturity date.
49-16B-33
Interim notes--Registration--Issuance.
49-16B-34
Interim notes--Interest--Redemption by authority.
49-16B-35
Interim notes--Execution--Attestation--Seal.
49-16B-36
Interim notes--Secured by pledge--Repayment from sale of revenue bonds and
property acquired.
49-16B-37
Interim notes--Additional security for payment.
49-16B-38
Interim notes not indebtedness within constitutional or statutory limitations.
49-16B-39
Payment of interim notes contemporaneously with issue of revenue bonds or escrow
of bond proceeds for future repayment.
49-16B-40
Interim notes--No personal liability.
49-16B-41
Income of authority--Payment to state treasurer or trustee--Railroad authority fund--Disbursements.
49-16B-42
Authority to account for income--Disbursements from accounts in fund.
49-16B-43
Conveyance of property to state by authority.
49-16B-44
Record of lease rental payments--Conveyance of property to state upon receipt of
sufficient rentals to pay bonds.
49-16B-45
Repealed.
49-16B-46
Contract power of authority.
49-16B-47
Bylaws, rules and regulations of authority.
49-16B-48 to 49-16B-68. Repealed.
49-16B-1. Legislative declarations--Public participation in railroad ownership and operation.
It is hereby declared:
(1) That there exists within the state a serious emergency as a result of the imminent abandonment by railroads of substantial services which they have provided within the state, and the deteriorated condition of their properties and facilities;
(2) That the abandonment of service and the deteriorated condition of railroad properties and facilities within the state has had and will continue to have a serious adverse effect upon the development of the state's resources and the improvement of its economic facilities and seriously interfere with the flow of commerce within the state, including the production and marketing of agricultural and manufactured commodities;
(3) That the deteriorated condition of railroad properties and facilities and the abandonment of railroad service also places upon the state's highways additional burdens which cannot be sustained by them without irreparable damage;
(4) That neither the improvement of railroad properties and facilities nor the continued provision of abandoned railroad service can be accomplished without public participation in the operation and ownership of railroad properties and facilities and the conduct of railroad services;
(5) That for the foregoing reasons, it is to the economic benefit of the state for the Legislature to foster and encourage public participation in the ownership of railroad properties and facilities and the conduct of railroad services and that measures for such purposes should be adopted to permit such public participation as soon as practicable.
Source: SL 1980, ch 323, § 1.
49-16B-2. Definitions of terms.
Terms used in this chapter mean:
(1) "Authority," the South Dakota Railroad Authority;
(2) "Railroad facilities," or "facilities," all property either real, personal, or mixed used or useful in the conduct of railroad services.
Source: SL 1980, ch 323, § 2; SL 1996, ch 20, § 22.
49-16B-3. Railroad authority created--Members.
There is created the South Dakota Railroad Authority, a body corporate and politic. The governing board of the South Dakota Railroad Authority shall be comprised of the members of the South Dakota State Railroad Board, as provided by § 1-44-25.
Source: SL 1980, ch 323, § 3; SL 2011, ch 74, § 7; SL 2014, ch 218, § 1.
49-16B-4. Authority attached to bureau of finance and management for reporting purposes--Exercise of functions.
The authority shall be attached to the Bureau of Finance and Management for reporting purposes but shall exercise all its prescribed functions, including administrative functions. The authority shall submit such records, information, and reports in the form and at such times as required by the commissioner of finance and management, except that the authority shall report at least annually.
Source: SL 1980, ch 323, § 4.
49-16B-6. Oath and bond of members.
Each member shall, before entering upon the duties of office, take and subscribe the constitutional oath of office and give bond in the penal sum of twenty-five thousand dollars conditioned upon the faithful performance of the member's duties. The oath and bond shall be filed in the Office of the Secretary of State.
Source: SL 1980, ch 323, § 6; SL 2010, ch 145, § 189.
49-16B-7. Per diem and expenses.
The members of the authority shall be paid their per diem compensation and reimbursed expenses as set pursuant to § 4-7-10.4.
Source: SL 1980, ch 323, § 7.
49-16B-8. Agents and employees.
The authority may employ agents and employees necessary to carry out the duties and purposes of the authority.
Source: SL 1980, ch 323, § 8; SL 2010, ch 145, § 190.
49-16B-9. Seal.
The authority may have and use a common seal and alter the same at pleasure.
Source: SL 1980, ch 323, § 9.
49-16B-10. Projects authority may undertake.
For the purpose of developing the resources and improving the economic facilities of the state, the authority may engage in works of internal improvement and may own and conduct proper business enterprises through:
(1) Planning, establishing, acquiring, developing, constructing, purchasing, enlarging, maintaining, equipping, and protecting railroads and railroad facilities, including railroad rolling stock. For such purposes the authority may acquire, by purchase, gift, devise, lease, or condemnation real or personal property or any interest therein;
(2) Conducting continuous studies into the need for such facilities; and
(3) Serving the Legislature by making reports and recommendations concerning the providing of such facilities.
Source: SL 1980, ch 323, § 10.
49-16B-11. Report to legislature recommending projects.
The authority shall obtain estimates of the cost of any project it deems necessary or convenient and shall formulate and recommend a list of projects. The authority shall present a report including its recommendations, proposed projects and estimated costs to the Legislature not later than the first day of November immediately preceding the convening of a regular session of the Legislature if the authority has any recommendation or proposed project. In recommending projects to be undertaken, the authority may not deviate from the priority listing of projects submitted by the Department of Transportation.
Source: SL 1980, ch 323, § 11; SL 1996, ch 20, § 23; SL 2010, ch 145, § 191.
49-16B-12. Transfer of jurisdiction or property to authority--Governor's approval.
Any department, board, commission, agency, or officer of the state may transfer jurisdiction of or title to any property under its or the officer's control to the authority if the transfer is approved, in writing, by the Governor, as being advantageous to the state.
Source: SL 1980, ch 323, § 12; SL 2010, ch 145, § 192.
49-16B-13. Acquisition of property--Construction and maintenance of railroad facilities.
To accomplish projects of the kind listed in § 49-16B-10 the authority may acquire by purchase, condemnation, including the power of condemnation in accordance with chapters 21-35 and 31-19, including the eminent domain and declaration of taking sections therein, gift or otherwise. The authority may construct, maintain, and equip railroad facilities as the Legislature by law declares to be in the public interest. In the course of such activities, the authority may acquire property of any kind and description, whether real, personal or mixed, by gift, purchase, or otherwise. The authority may also acquire real estate of the State of South Dakota controlled by any officer, department, board, commission, or other agency of the state, the jurisdiction of which is transferred by the officer, department, board, commission, or other agency, to the authority.
Source: SL 1980, ch 323, § 13; SL 2010, ch 145, § 193.
49-16B-13.1. Approval of expenditures by railroad board and Governor.
The authority shall receive approval for all proposed expenditures from the South Dakota State Railroad Board and the Governor.
Source: SL 1981, ch 100, § 5; SL 2010, ch 145, § 194.
49-16B-13.2. Maintenance of public railroad property by Department of Transportation.
The Department of Transportation, in accord with its obligation to maintain certain public highways under § 31-5-1, shall maintain the public railroad property purchased and owned by the state pursuant to chapter 49-16B.
Source: SL 1981, ch 331, § 4; SL 2010, ch 145, § 195.
49-16B-14. Department of Transportation's powers as to projects.
The Department of Transportation shall prepare or review and approve plans and specifications for and have supervision over any project to be undertaken by the authority.
Source: SL 1980, ch 323, § 14; SL 1996, ch 20, § 24.
49-16B-15. Lease of facilities and sites.
To accomplish projects of the kind listed in § 49-16B-10, the authority may execute leases of facilities and sites to, and charge for the use of any such facilities and sites by the Department of Transportation or other lessee. Leases may be entered into contemporaneously with any financing to be done by the authority and payments under the terms of a lease shall begin at any time after execution of any lease.
Source: SL 1980, ch 323, § 15; SL 1981 (2d SS), ch 4, § 6; SL 1996, ch 20, § 25.
49-16B-16. Lease terms, conditions and rentals.
Leases may be:
(1) Upon such terms, conditions, and rentals as in the judgment of the authority are in the public interest; or
(2) For a term of one year, with an option in the lessee to extend the term of the lease for a term of one year from the expiration of the original term of the lease and for one year from the expiration of each extended term of the lease, until the original term of the lease has been extended for a total number of years to be agreed upon by the parties at a rental which, if paid for the original term and for each of the full number of years for which the term of the lease may be extended, will amortize the total cost of the project financed.
The rental shall be paid at such times as the parties to the lease agree.
Source: SL 1980, ch 323, § 16; SL 1981 (2d SS), ch 4, § 7.
49-16B-17. Leases to contain option to purchase--Purchase price.
The lease shall provide that the lessee may, at the expiration of the original or any extended term, purchase the leased premises at a stated price, which shall be the balance of the total cost of the project financed not amortized by the payments of rents previously made by the lessee. The lease shall provide that in the event of the exercise of the option to purchase the leased premises or in the event the lease has been extended for the full number of years which it is agreed the same may be extended, and all rents and payments provided for in the lease have been made, the lessor shall convey the premises to the lessee.
Source: SL 1980, ch 323, § 17.
49-16B-18. Lease provisions for lessee's payment of taxes, insurance and other costs.
The lease may provide that the lessee shall, as additional rent for the leased premises, pay all taxes assessed against the leased premises if any, and the cost of insuring, maintaining, repairing, and operating the facilities.
Source: SL 1980, ch 323, § 18.
49-16B-19. Leases to Department of Transportation--Rents payable solely from appropriations--Amount.
Leases to the Department of Transportation shall contain the provision that rents under the leases are payable solely from appropriations to be made by the Legislature for the payment of rent under the leases may not exceed an amount sufficient to pay principal of and interest on the bonds and a proportion of the administrative expenses of the authority as provided for by each lease, and such reserves as may be provided in the resolutions of issuance.
Source: SL 1980, ch 323, § 19; SL 1996, ch 20, § 26.
49-16B-20. Nonpayment of rent--Maintenance, operation, or lease of facilities.
The authority may, in the event of nonpayment of rents reserved in such leases, maintain and operate the facilities and sites or execute leases of the facilities and sites to others for any suitable purposes.
Source: SL 1980, ch 323, § 20; SL 2010, ch 145, § 196.
49-16B-21. Rental and charges for facilities leased to other than Department of Transportation--Conveyance at conclusion.
The charges, fees, or rentals established by the authority for the use of any facilities acquired, constructed, completed, or equipped in whole or in part with the proceeds of the bonds or instruments issued as provided in this chapter and leased to lessees other than the Department of Transportation shall be sufficient at all times to pay maintenance and operation costs for the facilities (unless under a lease maintenance and operation costs are otherwise provided for), principal of and interest on the bonds and a proportion of the administrative expenses of the authority as provided for by each lease, and such reserves as may be provided in the resolutions of issuance and may provide for conveyance of the facilities to the lessee at the conclusion of the term of the lease.
Source: SL 1980, ch 323, § 20; SL 1981 (2d SS), ch 4, § 8; SL 1996, ch 20, § 27.
49-16B-22. Tax exempt status of authority's property.
All property owned by the authority is exempt from taxation.
Source: SL 1980, ch 323, § 21.
49-16B-23. Negotiable revenue bonds--Resolution for issuance--Legislative approval.
The authority may at one time, or from time to time, provide by resolution for the issuance of negotiable revenue bonds for the purpose of paying all or any part of the cost of one or combination of projects. However, no revenue bonds may be sold to raise the funds for payment of such project until after the Legislature by law declares the same to be in the public interest.
Source: SL 1980, ch 323, § 22.
49-16B-24. Borrowing money and issuing bonds authorized--Refunding and refinancing--Pledge of income and revenues.
To accomplish projects of the kind listed in § 49-16B-10, the authority may borrow money and issue and sell bonds in such amount or amounts as the authority may determine for the purpose of acquiring, improving or equipping any such facility; refund and refinance the same from time to time as often as advantageous and in the public interest to do so; and pledge any and all income of such authority, and any revenues derived by the authority from such facilities, or any combination thereof, to secure the payment of such bonds and redeem such bonds. All such bonds shall be subject to the provisions of §§ 49-16B-25 to 49-16B-30, inclusive.
Source: SL 1980, ch 323, § 23.
49-16B-25. Bonds and notes--Resolution--Issuance--Terms.
Bonds or notes of the authority shall be authorized by resolution of the authority and may be issued under the resolution or under a trust indenture or other security agreement, in one or more series. The bonds or notes shall bear such date or dates, mature at such time or times, bear interest at such rate or rates, be in such denominations, be in such form, either coupon or registered, carry such conversion, exchange and registration privileges, have such rank or priority, be executed in such manner, be payable in such medium of payment at such place or places within or outside the state, be subject to such terms of redemption with or without premium, and contain or be subject to such other terms as the resolution, trust indenture or security agreement may provide. The bonds or notes may not be restricted by any other law limiting amounts, maturities, interest rates, or other terms or obligations of public agencies or private persons.
Source: SL 1980, ch 323, § 24; SL 2010, ch 145, § 197.
49-16B-26. Bonds--Repayment from lease income and revenues from facilities financed.
Such bonds shall be payable solely and only from:
(1) Income to be derived from rental leases as provided in §§ 49-16B-15 to 49-16B-21, inclusive; and
(2) Revenues to be derived by the authority from the operation of such facilities acquired, constructed, improved, or equipped in whole or in part with the proceeds of such bonds.
Source: SL 1980, ch 323, § 25.
49-16B-27. Bonds--Execution and registration--Officers' signatures.
Bonds shall be executed by officers of the authority as shall be designated by the authority, and shall be registered by the state auditor of the State of South Dakota. Any bonds bearing the signature of officers in office at the date of signing thereof shall be valid and binding for all purposes, notwithstanding that before delivery thereof any or all persons whose signature appears thereon shall have ceased to be officers.
Source: SL 1980, ch 323, § 26.
49-16B-28. Bonds--Statements on face.
Each bond shall state upon its face that it is payable solely from revenues derived by the authority from the operation of facilities acquired, constructed, improved, or equipped in whole or in part with the proceeds of the sale of such bonds, including income to be derived from rental leases as provided in §§ 49-16B-15 to 49-16B-21, inclusive. Each bond shall state upon its face that it does not constitute an obligation of the State of South Dakota within the meaning of any provisions of the Constitution or statutes of the State of South Dakota.
Source: SL 1980, ch 323, § 27.
49-16B-29. Obligation of state not authorized.
Nothing in this chapter authorizes the authority or any department, board, commission, or other agency to create an obligation of the State of South Dakota within the meaning of the Constitution or statutes of South Dakota.
Source: SL 1980, ch 323, § 28; SL 2010, ch 145, § 198.
49-16B-30. Contract with holders--Enforcement.
The provisions of this chapter and of any resolution or proceeding authorizing the issuance of bonds constitutes a contract with the holders of such bonds. The provisions are enforceable either in law or in equity, by suit, action in mandamus or other proceeding in any court of competent jurisdiction to enforce and compel the performance of any duties required by this chapter or any resolution or proceeding authorizing the issuance of the bonds, including the establishment of sufficient charges, fees, or rentals and the application of the income from a project under this chapter as provided in § 49-16B-26.
Source: SL 1980, ch 323, § 29; SL 2010, ch 145, § 199.
49-16B-31. Interim notes--Purposes for which authorized.
In addition to the permanent financing authorized by §§ 49-16B-23 to 49-16B-30, inclusive, the authority may borrow money and issue interim notes in evidence thereof for any of the projects, or to perform any of the duties authorized under this chapter, and in addition may borrow money and issue interim notes for planning, design, and engineering services, acquisition of land, purchase of equipment, movable or otherwise as set forth in §§ 49-16B-32 to 49-16B-39, inclusive.
Source: SL 1980, ch 323, § 30.
49-16B-32. Interim notes--Issuance pursuant to resolution--Contents of resolution--Extending maturity date.
Whenever the authority deems it advisable and in the interests of the authority to borrow funds temporarily for any of the purposes enumerated in § 49-16B-31, the authority may from time to time, and pursuant to appropriate resolution, issue interim notes to evidence such borrowings, including funds for the payment of interest on such borrowings and funds for all necessary and incidental expenses in connection with any of the purposes provided for by this section and this chapter until the date of the permanent financing. Any resolution authorizing the issuance of such notes shall describe the project to be undertaken and shall specify the principal amount, rate of interest and maturity date, but not to exceed five years from date of issue, and such other terms as may be specified in such resolution. However, the time of payment of any such notes may be extended for a period of not exceeding three years from the maturity date thereof.
Source: SL 1980, ch 323, § 31.
49-16B-33. Interim notes--Registration--Issuance.
The authority may provide for the registration of the notes in the name of the owner either as to principal alone, or as to both principal and interest, on such terms and conditions as the authority may determine by the resolution authorizing their issue. The notes shall be issued from time to time by the authority as funds are borrowed, in the manner the authority may determine.
Source: SL 1980, ch 323, § 32.
49-16B-34. Interim notes--Interest--Redemption by authority.
Interest on the notes may be made payable semiannually, annually or at maturity. The notes may be made redeemable, prior to maturity, at the option of the authority, in the manner and upon the terms fixed by the resolution authorizing their issuance.
Source: SL 1980, ch 323, § 32.
49-16B-35. Interim notes--Execution--Attestation--Seal.
The notes may be executed in the name of the authority by the chairman of the authority or by any other officer or officers of the authority as the authority by resolution may direct, shall be attested by the secretary or such other officer or officers of the authority as the authority may by resolution direct, and be sealed with the authority's corporate seal.
Source: SL 1980, ch 323, § 32.
49-16B-36. Interim notes--Secured by pledge--Repayment from sale of revenue bonds and property acquired.
All such notes and the interest thereon may be secured by a pledge of any income and revenue derived by the authority from the project to be undertaken with the proceeds of the notes, after deducting from such income and revenue any reasonable and necessary maintenance and operation expenses, and shall be payable solely from the proceeds to be derived from the sale of any revenue bonds for permanent financing authorized to be issued under §§ 49-16B-23 to 49-16B-30, inclusive, and from the property acquired with the proceeds of the notes.
Source: SL 1980, ch 323, § 32.
49-16B-37. Interim notes--Additional security for payment.
The authority, in order further to secure the payment of the interim notes, may make any other or additional covenants, terms and conditions not inconsistent with the provisions of §§ 49-16B-13 and 49-16B-15, and do any and all acts and things as may be necessary or convenient or desirable in order to secure payment of its interim notes, or, in the discretion of the authority, as will tend to make the interim notes more acceptable to lenders, notwithstanding that the covenants, acts or things may not be enumerated herein. However, nothing contained in this section authorizes the authority to secure the payment of the interim notes out of property or facilities, other than the facilities acquired with the proceeds of the interim notes, and any net income and revenue derived from the facilities and the proceeds of revenue bonds.
Source: SL 1980, ch 323, § 33; SL 2010, ch 145, § 200.
49-16B-38. Interim notes not indebtedness within constitutional or statutory limitations.
The interim notes do not constitute an indebtedness within the meaning of any constitutional or statutory debt limitation or restriction.
Source: SL 1980, ch 323, § 34; SL 2010, ch 145, § 201.
49-16B-39. Payment of interim notes contemporaneously with issue of revenue bonds or escrow of bond proceeds for future repayment.
Contemporaneously with the issue of revenue bonds as provided by this chapter, all interim notes, even though they may not then have matured, shall be paid, both principal and interest to date of payment, from the funds derived from the sale of revenue bonds for the permanent financing and such interim notes shall be surrendered and canceled, or the proceeds at the sale of said bonds, excepting the accrued interest received, shall be used to purchase direct obligations of the United States of America so long as such obligations will mature at such time or times, with interest thereon or the proceeds received therefrom, to provide funds adequate to pay when due or called for redemption prior to maturity the notes to be refunded, together with the interest accrued thereon and any redemption premium due thereon, and such proceeds or obligations of the United States of America shall, with all other funds legally available for such purpose, be deposited in escrow with a banking corporation, or national banking association, located in and doing business in the State of South Dakota, with power to accept and execute trusts, or any successor thereto, which is also a member of the federal deposit insurance corporation and of the federal reserve system, to be held in an irrevocable trust solely for and until the payment and redemption of the notes so to be refunded, and any balance remaining in said escrow after the payment and retirement of the notes to be refunded shall be returned to said authority to be used and held for use as revenues pledged for the payment of said refunding bonds.
Source: SL 1980, ch 323, § 35.
49-16B-40. Interim notes--No personal liability.
No member, officer, agent, or employee of the authority, nor any other person who executes interim notes, may be liable personally by reason of the issuance thereof.
Source: SL 1980, ch 323, § 35.
49-16B-41. Income of authority--Payment to state treasurer or trustee--Railroad authority fund--Disbursements.
The gross total income derived by the authority from:
(1) The sale of bonds;
(2) Charges, fees, or rentals; and
(3) All other revenue derived from any project undertaken pursuant to this chapter;
shall be paid to the treasurer of the State of South Dakota or to a trustee under a resolution, trust indenture or other security agreement. The income shall beheld by the state treasurer or a trustee in trust for the purposes of this chapter, in a special fund known as the railroad authority fund. In all cases, the state treasurer shall be ex officio custodian of such fund. Disbursements shall be made from such fund upon the order of the authority.
Source: SL 1980, ch 323, § 36; SL 1981 (2d SS), ch 4, § 9.
49-16B-42. Authority to account for income--Disbursements from accounts in fund.
The authority shall keep account of the gross total income derived from each separate project or any combination thereof undertaken pursuant to this chapter. Disbursements from a given account in the railroad authority fund shall be ordered by the authority only for the payment of:
(1) The principal of and interest on the bonds issued for each project, or combination thereof;
(2) The cost of maintenance and operation of the facility or facilities, unless otherwise provided for; and
(3) Any other purposes set forth in the resolution authorizing the issuance of said bonds.
Source: SL 1980, ch 323, § 37.
49-16B-43. Conveyance of property to state by authority.
To accomplish projects of the kind listed in § 49-16B-10, the authority shall convey property, without charge, to the Department of Transportation if and when all debts which have been secured by the income from the property have been paid. In addition, the railroad authority may, prior to the payment of all debts secured by such property, convey property to the state or its subdivisions for public purposes or improvements, if the sale of secured property is made only after a finding by the railroad authority that the sale does not materially or adversely affect the interests of secured creditors and if the proceeds from any sale shall be used to reduce or provide for the payment of any outstanding debt.
Source: SL 1980, ch 323, § 38; SL 1981, ch 329, § 4; SL 1996, ch 20, § 28.
49-16B-44. Record of lease rental payments--Conveyance of property to state upon receipt of sufficient rentals to pay bonds.
An accurate record shall be kept of the rental payments under each lease entered into by the authority or Department of Transportation. If the rentals applicable to each project or facility, or any combination thereof, constructed, completed, improved, and equipped are paid, in amounts sufficient to amortize and pay the principal of and interest upon the total principal amounts of bonds of the authority issued to pay the cost of each project or facility, including maintenance and operation expenses and that proportion of the administrative expense of the authority as provided for by each lease, the property shall, except as may be otherwise provided in a lease, be conveyed without charge to the State of South Dakota.
Source: SL 1980, ch 323, § 39; SL 1981, ch 329, § 5; SL 1981 (2d SS), ch 4, § 10; SL 1996, ch 20, § 29.
49-16B-46. Contract power of authority.
The authority may enter into contracts regarding any matter connected with any corporate purpose within the objects and purposes of this chapter.
Source: SL 1980, ch 323, § 41.
49-16B-47. Bylaws, rules and regulations of authority.
To accomplish projects of the kind listed in § 49-16B-10, the authority may adopt all necessary bylaws, rules, and regulations for the conduct of the business and affairs of the authority, and for the management and use of facilities and sites acquired under the powers granted by this chapter.
Source: SL 1980, ch 323, § 42.
49-16C-1
Railroad trust fund--Creation--Expenditure.
49-16C-2
Transfer of money to railroad authority fund.
49-16C-3
Loans to regional railroad authorities--Procedure.
49-16C-4
Interest and fees on loans to regional authorities.
49-16C-5
Expenditures to match federal funds.
49-16C-6
Expenditure to join other states in preserving certain railroad.
49-16C-7
Continuous appropriation of fund.
49-16C-8
Purchase of rolling stock or operation of railroad not authorized.
49-16C-1. Railroad trust fund--Creation--Expenditure.
For the purposes of planning, enlarging, maintaining, equipping, and protecting railroads and railroad facilities, there is hereby created a special fund within the state treasury known as the railroad trust fund. All moneys in the fund, except as otherwise provided in this chapter, shall be expended in accordance with the provisions of chapter 4-7, chapter 4-8, chapter 4-8A, and chapter 4-8B.
Source: SL 1981, ch 100, § 3.
49-16C-2. Transfer of money to railroad authority fund.
Upon approval of a proposed expenditure as provided for in § 49-16B-13.1, the Governor shall order the approved amount of money transferred from the railroad trust fund to the railroad authority fund.
Source: SL 1981, ch 100, § 6.
49-16C-3. Loans to regional railroad authorities--Procedure.
The South Dakota State Railroad Board may upon the written approval of the Governor make loans from the railroad trust fund to regional railroad authorities upon such terms and conditions as the State Railroad Board may determine. The South Dakota State Railroad Board shall adopt rules, pursuant to chapter 1-26 establishing the procedures for loan application and approval.
Source: SL 1981, ch 100, § 7.
49-16C-4. Interest and fees on loans to regional authorities.
The South Dakota State Railroad Board may set from time to time the interest rates at which it shall make the loans provided for in § 49-16C-3. In addition to such interest charges, the board may make and collect such costs, fees, and other charges as the board may deem necessary.
Source: SL 1981, ch 100, § 8.
49-16C-5. Expenditures to match federal funds.
The South Dakota State Railroad Board may, with the approval of the Governor, expend funds from the railroad trust fund to match federal railroad rehabilitation funds.
Source: SL 1981, ch 100, § 9.
49-16C-6. Expenditure to join other states in preserving certain railroad.
The South Dakota State Railroad Board may, upon approval of the Governor, expend from the railroad trust fund an amount not to exceed one million dollars to join with other states to preserve the railroad line extending from Jonathan, Minnesota, in a westerly direction through South Dakota to Miles City, Montana.
Source: SL 1981, ch 100, § 10.
49-16C-7. Continuous appropriation of fund.
Any funds in the railroad trust fund designated for expenditure by any of the provisions of § 49-16B-13.1, 49-16C-2, 49-16C-3, 49-16C-5, or 49-16C-6 are hereby continuously appropriated for such purposes.
Source: SL 1981, ch 100, § 10A.
49-16C-8. Purchase of rolling stock or operation of railroad not authorized.
Provisions of this chapter do not constitute permission to purchase railroad rolling stock or to operate any railroad.
Source: SL 1981, ch 100, § 11.
49-17-1 to 49-17-18. Repealed.
49-17-19
Acceptance by commission of funds for railroad improvement--Acquisition,
construction and operation of facilities.
49-17-20
Acceptance of moneys for county or municipality for railroad purposes.
49-17-21
Contracts for continuation and improvement of freight service.
49-17-22
Identification of branch trackage with potential for service.
49-17-23
Programs for improvement of freight service on branch trackage.
49-17-24
Contracts for improvement of freight service.
49-17-25
Participation required from users of improved service.
49-17-26
Payment to state of portion of revenue increase from improved service.
49-17-27
Separate fund for improvement and conservation of branch lines.
49-17-28
Acceptance of funds for improvement of branch line service.
49-17-29
Vouchers and warrants for expenditures for improvement of branch line
service.
49-17-19. Acceptance by commission of funds for railroad improvement--Acquisition, construction and operation of facilities.
The South Dakota Transportation Commission may apply for, accept and expend federal, state, local, and private funds for the improvement of rail transportation. The Transportation Commission may contract for the acquisition, construction, improvement, maintenance, or operation of railroads or railroad facilities.
Source: SL 1978, ch 343, § 1.
49-17-20. Acceptance of moneys for county or municipality for railroad purposes.
The South Dakota Transportation Commission may act for any county or municipality upon the request of the governing body of such county or municipality, in accepting and receiving moneys for railroad purposes.
Source: SL 1978, ch 343, § 2.
49-17-21. Contracts for continuation and improvement of freight service.
The South Dakota Transportation Commission may enter into on behalf of the state and for any county or municipality, upon the request of the governing body of such county or municipality, compacts, contracts, or agreements with any state or states, and with public or private corporations operating railroad lines if such compact, contracts, or agreements are deemed necessary for the continuance or improvement of railroad freight service in South Dakota.
Source: SL 1978, ch 343, § 3.
49-17-22. Identification of branch trackage with potential for service.
The Department of Transportation shall identify those segments of branch line railroad trackage which, if improved, may provide increased transportation services for the citizens of this state.
Source: SL 1978, ch 342, § 1.
49-17-23. Programs for improvement of freight service on branch trackage.
The Department of Transportation shall develop and implement programs to encourage the improvement of rail freight services on such railroad trackage.
Source: SL 1978, ch 342, § 2.
49-17-24. Contracts for improvement of freight service.
The Department of Transportation, with the approval of the South Dakota Transportation Commission, may enter into agreements with railroad corporations, the United States government, persons, municipalities, counties, or regional railroad authorities for carrying out the purposes of §§ 49-17-22 and 49-17-23.
Source: SL 1978, ch 342, § 3.
49-17-25. Participation required from users of improved service.
Agreements entered into requiring expenditure of state funds shall also require the expenditure of funds by rail users benefiting from the proposed improvements and the expenditure of funds or the provision of services, by the railroad corporation party to such agreement. The ratio of participation by state rail users and railroad corporations shall be determined by the Department of Transportation for each branch line or branch line segment to be upgraded.
Source: SL 1978, ch 342, § 3.
49-17-26. Payment to state of portion of revenue increase from improved service.
Agreements entered into between the Department of Transportation and railroad corporations, pursuant to § 49-17-24, may require payment by the railroad corporation of a portion of increased revenue derived from the improved branch line to the state.
Source: SL 1978, ch 342, § 4.
49-17-27. Separate fund for improvement and conservation of branch lines.
Agreements between railroad corporations and the Department of Transportation pursuant to § 49-17-24 which do not require payment of a portion of the increased revenue derived from the improved branch line to be paid by the railroad corporation to the state shall require that the railroad corporation establish and maintain a separate railroad corporation fund to which a specified portion of the increase in revenue derived from the improved railroad branch line shall be credited and that these funds shall be used by the railroad corporation for improvement, restoration, or conservation of railroad branch lines within the state.
Source: SL 1978, ch 342, § 4.
49-17-28. Acceptance of funds for improvement of branch line service.
The Department of Transportation with the approval of the South Dakota Transportation Commission shall be authorized to accept and expend for the purposes of §§ 49-17-22 and 49-17-23, funds which it may obtain from any source including funds received from railroad corporations under the terms of § 49-17-26.
Source: SL 1978, ch 342, § 5.
49-17-29. Vouchers and warrants for expenditures for improvement of branch line service.
Expenditures authorized in §§ 49-17-22 to 49-17-28, inclusive, shall be paid on warrants drawn by the state auditor on vouchers approved by the secretary of the Department of Transportation, or his designee.
Source: SL 1978, ch 342, § 6.
49-17A-1
Definition of terms.
49-17A-2
Creation of authority by agreement of subdivisions.
49-17A-3
Contents of agreement creating authority.
49-17A-3.1
Authority may not change resolution eschewing taxing power.
49-17A-4
Filing of agreement and resolutions--Certificate of incorporation--Beginning of
corporate existence.
49-17A-5
Hearing before adoption of resolution--Publication of notice.
49-17A-6
Election of commissioners--Terms of office--Vacancies.
49-17A-7
Power vested in commissioners--Rules for operation.
49-17A-8
Chairman and secretary-treasurer of authority.
49-17A-9
Executive director and other agents--Delegation of powers and duties.
49-17A-10
Reimbursement of commissioners' expenses.
49-17A-11
Addition of subdivision to authority.
49-17A-12
Withdrawal of subdivision from authority--Disposition of assets and liabilities.
49-17A-13
Filing of resolution increasing or decreasing authority--Amended certificate of
incorporation.
49-17A-14
Powers of political subdivisions in aid of regional authority.
49-17A-15
Corporate powers of authority.
49-17A-16
Planning, acquisition and operation of railroads and facilities--Acquisition of
property.
49-17A-17
Use of public waters by authority--Buildings, roadways and bridges.
49-17A-18
Power of eminent domain--Restrictions on acquisition of public or railroad property.
49-17A-19
Public purpose and necessity for acquisitions.
49-17A-20
Exemption from taxation of property and income of authority.
49-17A-21
Annual certification of tax levy for authority--Levy of tax--Collection.
49-17A-21.1
Zones of benefit--Tax levy applied to.
49-17A-22
Maximum tax levy--County levy not applied in subdivision making levy.
49-17A-23
Deposit of tax proceeds--Expenditure.
49-17A-24
Covenant to levy taxes until bonds paid.
49-17A-25
Acceptance and expenditure of federal and other grants and loans.
49-17A-26
Designation of railroad division as agent of authority--Funds held in separate
account--Vouchers and warrants.
49-17A-27
Issuance of bonds and notes--Purposes for which proceeds used.
49-17A-28
Revenues and funds pledged to payment of bonds and notes--Negotiability.
49-17A-29
Resolutions for bonds or notes--Security agreement--Terms and conditions.
49-17A-30
Mortgages and deeds of trust to secure obligations--Filing.
49-17A-31
Bond recital conclusive as to authority and purpose.
49-17A-32
Continuing validity of signatures on bonds and notes--Temporary bonds.
49-17A-33
Sale of bonds.
49-17A-34
Bonds exempt from taxation.
49-17A-35
Persons executing bonds not personally liable.
49-17A-36
Arrangements for operating and providing railroad service.
49-17A-37
Grant of operating privileges and use of railroad and facilities.
49-17A-38
Repealed.
49-17A-39
Disposition of property of authority.
49-17A-40
Citation of chapter.
49-17A-1. Definition of terms.
Terms used in this chapter, unless the context plainly otherwise requires, mean:
(1) "Bonds," any bonds, notes, interim certificates, debentures, or similar obligations issued by an authority pursuant to this chapter;
(2) "Governing body," the official or officials authorized by law to exercise ordinance making or other lawmaking powers of a political subdivision;
(3) "Political subdivision," or "subdivision," any county, municipality, or other body politic of this state;
(4) "Project," any railroad or related facilities operated or owned by an authority, including all real and personal property, structures, machinery, equipment and appurtenances or facilities which are part of such railroad and useful in connection therewith, including facilities for the convenience of handling passengers and freight or as part of railroad operations;
(5) "Railroad authority" or "authority," any authority created pursuant to the provisions of this chapter;
(6) "Real property," lands, structures and interests in land, including lands under water and riparian rights, including any and all lesser interests, such as easements, rights of way, uses, leases, licenses, and all other incorporeal hereditaments and every estate, interest or right, legal or equitable, pertaining to real property.
Source: SL 1978, ch 344, § 1.
49-17A-2. Creation of authority by agreement of subdivisions.
Two or more subdivisions may form a regional railroad authority by execution of an agreement authorized by resolution of the governing body of each subdivision.
Source: SL 1978, ch 344, § 2.
49-17A-3. Contents of agreement creating authority.
The agreement authorized in § 49-17A-2 shall state:
(1) That the railroad authority is created and incorporated under the provisions of this chapter as a political subdivision of this state, to exercise thereunder a part of the sovereign power of the state;
(2) The name of the authority which shall include the words "regional railroad authority";
(3) The names of the subdivisions which have approved the agreement and are the initial members of the regional railroad authority;
(4) The names and addresses of the persons initially appointed by the resolutions approving the agreement to act as the representatives or alternate representatives of the subdivisions;
(5) The address of the registered office of the authority and the name of its registered agent at such office;
(6) That the subdivisions which are members of the regional railroad authority and its commissioners, officers, and agents are not liable for its obligations;
(7) Any other provision for regulating the business of the regional railroad authority which may be agreed upon by the subdivisions.
Source: SL 1978, ch 344, § 3.
49-17A-3.1. Authority may not change resolution eschewing taxing power.
Any railroad authority may adopt a resolution amending the provisions of the agreement authorized by § 49-17A-2 to specify that the railroad authority may not levy a tax pursuant to the provisions provided in chapter 49-17A. The railroad authority shall file a certified copy of the resolution with the secretary of state and the secretary of state shall issue an amended certificate of incorporation. The railroad authority may not adopt a resolution to amend or repeal this resolution prohibiting the railroad authority from levying a tax pursuant to the provisions provided in chapter 49-17A.
Source: SL 1997, ch 264, § 1.
49-17A-4. Filing of agreement and resolutions--Certificate of incorporation--Beginning of corporate existence.
The agreement and a certified copy of the resolution of each subdivision shall be filed with the secretary of state. If the agreement conforms to the requirements of this chapter the secretary of state shall file it and issue a certificate of incorporation, which shall state the name of the authority and the date of incorporation. The existence of the authority as a political subdivision of this state shall begin upon the issuance of the certificate of incorporation. The certificate of incorporation shall be conclusive evidence of the existence of the authority.
Source: SL 1978, ch 344, § 4.
49-17A-5. Hearing before adoption of resolution--Publication of notice.
No resolution authorized by § 49-17A-2 or 49-17A-11 shall be adopted without a public hearing. Notice of such hearing shall be given at least ten days prior thereto in the official newspaper of the subdivision, or if the subdivision has no official newspaper, then in a newspaper having general circulation in the subdivision.
Source: SL 1978, ch 344, § 5.
49-17A-6. Election of commissioners--Terms of office--Vacancies.
The representatives of the subdivisions which are members of a regional railroad authority shall elect commissioners of the regional railroad authority. The number to be elected and their representation shall be provided for in the agreement. All commissioners of a regional railroad authority shall be elected for a term of three years. Vacancies shall be filled for the unexpired term in the same manner as the original elections. Each commissioner shall hold office until his or her successor has been elected and qualified.
Source: SL 1978, ch 344, § 6; SL 1981, ch 333, § 1; SL 2012, ch 227, § 1.
49-17A-7. Power vested in commissioners--Rules for operation.
The power of each regional authority is vested in the commissioners. Each authority may adopt and amend rules for its own operations subject to the agreement of the subdivisions establishing the authority and subject to the provisions of this chapter.
Source: SL 1978, ch 344, § 7.
49-17A-8. Chairman and secretary-treasurer of authority.
Each regional authority shall elect a chairman and a secretary-treasurer, from among the commissioners.
Source: SL 1978, ch 344, § 8.
49-17A-9. Executive director and other agents--Delegation of powers and duties.
A regional authority may appoint or elect an executive director, and such other officers, agents, and employees as it may determine. An authority may delegate its powers and duties to one or more of its officers, agents, or employees.
Source: SL 1978, ch 344, § 9.
49-17A-10. Reimbursement of commissioners' expenses.
A commissioner shall receive no compensation for his services but shall be reimbursed for the necessary expenses incurred in the discharge of his duties.
Source: SL 1978, ch 344, § 10.
49-17A-11. Addition of subdivision to authority.
A regional authority may be increased to serve an additional subdivision upon approval by resolution of the additional subdivision pursuant to this chapter and approval of the commissioners.
Source: SL 1978, ch 344, § 11; SL 1981, ch 333, § 2.
49-17A-12. Withdrawal of subdivision from authority--Disposition of assets and liabilities.
A regional authority may be decreased if the commissioners of the regional authority consent to the decrease. In such event, the commissioners shall provide for the retention and make provisions for the retention or disposition of its assets and liabilities. However, if the regional authority has any bonds outstanding no decrease shall be effected unless one hundred percent of the holders of the bonds consent in writing thereto.
Source: SL 1978, ch 344, § 12.
49-17A-13. Filing of resolution increasing or decreasing authority--Amended certificate of incorporation.
If a regional authority is increased or decreased pursuant to § 49-17A-11 or 49-17A-12, it shall forward to the secretary of state a certified copy of each resolution adopted pursuant thereto. Upon receipt thereof, the secretary of state shall issue an amended certificate of incorporation.
Source: SL 1978, ch 344, § 13.
49-17A-14. Powers of political subdivisions in aid of regional authority.
Any subdivision for which an authority has been created may:
(1) Lend or donate money to the authority;
(2) Provide that all or a portion of the taxes or funds available to the subdivision for railroad purposes, be transferred or paid directly to the authority;
(3) Cause water, sewer or drainage facilities, or any other facilities which it is authorized to provide, to be furnished adjacent to or in connection with such railroads or facilities;
(4) Dedicate, sell, convey, or lease any of its interest in any property, or grant easements, licenses, or any other rights or privileges therein to the authority;
(5) Furnish, dedicate, close, pave, install, grade, regrade, plan or replan streets, roads, roadways, and walks from established streets or roads to such railroad facilities;
(6) Aid and cooperate with the authority in the planning, undertaking, construction, or operation of railroad facilities;
(7) Enter into agreements with the authority regarding action to be taken by the subdivision pursuant to the provisions of this section.
Source: SL 1978, ch 344, § 14.
49-17A-15. Corporate powers of authority.
A regional authority may:
(1) Sue and be sued, have a seal, and have perpetual succession;
(2) Execute such contracts, other instruments, and take such action as may be necessary to carry out the purposes of this chapter.
Every authority may exercise such powers as are necessary or incidental to carry out the purposes of this chapter.
Source: SL 1978, ch 344, § 15.
49-17A-16. Planning, acquisition and operation of railroads and facilities--Acquisition of property.
A regional authority may plan, establish, acquire, develop, construct, purchase, enlarge, improve, maintain, equip, operate, regulate, and protect its railroads, and railroad facilities used or useful in the operation of the railroad. For such purposes an authority may acquire by purchase, gift, devise, lease, condemnation real or personal property, or any interest therein.
Source: SL 1978, ch 344, § 16.
49-17A-17. Use of public waters by authority--Buildings, roadways and bridges.
A regional authority may establish or acquire and maintain railroads over any public waters of this state and any submerged lands under such public waters. It may construct and maintain terminal buildings, causeways, roadways, and bridges for approaches to or connecting with any such railroads.
Source: SL 1978, ch 344, § 17.
49-17A-18. Power of eminent domain--Restrictions on acquisition of public or railroad property.
An authority may acquire all real or personal property that it deems necessary for carrying out the purposes of this chapter, whether in fee simple absolute or lesser interest, by condemnation and the exercise of the power of eminent domain in accordance with chapter 21-35. An authority shall have no power of eminent domain with respect to property owned by another authority or subdivision or public agency of this or any other state without the consent of such authority, subdivision, or public agency. The authority shall not condemn property owned or used by a railroad corporation unless such property is the subject of an abandonment petition filed with the interstate commerce commission.
Source: SL 1978, ch 344, § 18.
49-17A-19. Public purpose and necessity for acquisitions.
All land and other property and privileges acquired and used by or on behalf of any authority are hereby declared to be acquired and used for public and governmental purposes and as a matter of public necessity.
Source: SL 1978, ch 344, § 37.
49-17A-20. Exemption from taxation of property and income of authority.
Any property acquired by an authority and any income derived by the authority shall be exempt from taxation.
Source: SL 1978, ch 344, § 38.
49-17A-21. Annual certification of tax levy for authority--Levy of tax--Collection.
An authority may certify annually to the governing bodies the amount of tax to be levied by said governing bodies for railroad purposes. Each subdivision shall levy the amount certified, pursuant to provisions of law authorizing municipalities and other political subdivisions of this state to levy taxes for such purposes. The levy may not exceed the maximum levy permitted by the laws of this state for such purposes. Each subdivision shall collect the taxes certified by a railroad authority in the same manner as other taxes are levied, collected and paid to the railroad authority.
Source: SL 1978, ch 344, § 19.
49-17A-21.1. Zones of benefit--Tax levy applied to.
The authority may, in connection with the certification of an annual tax levy pursuant to § 49-17A-21, designate various zones of benefit or geographical portions of the member subdivisions which, in the judgment of the authority, will be or have been benefited by projects. The authority may then certify that such annual levy be applied only to such benefited area.
Source: SL 1979, ch 310.
49-17A-22. Maximum tax levy--County levy not applied in subdivision making levy.
In subdivisions which are parties to an agreement creating a regional railroad authority, a levy, in addition to all other levies authorized by law, not to exceed two dollars and forty cents per thousand dollars of taxable valuation of property in such subdivisions, may be made for such purposes. A county levy may not apply to any other subdivision making such levy hereunder.
Source: SL 1978, ch 344, § 20; SL 1989, ch 87, § 15F.
49-17A-23. Deposit of tax proceeds--Expenditure.
The proceeds of taxes for support of a railroad authority shall be deposited in such account or accounts in which other revenues of the authority are deposited and may be expended by the authority as provided in this chapter.
Source: SL 1978, ch 344, § 21.
49-17A-24. Covenant to levy taxes until bonds paid.
Prior to the issuance of bonds, the authority may by resolution covenant and agree that the total amount of such taxes authorized or any portion thereof will be certified, levied, and deposited annually as herein provided, until the bonds and interest thereon are fully paid.
Source: SL 1978, ch 344, § 22.
49-17A-25. Acceptance and expenditure of federal and other grants and loans.
An authority may accept, receive, receipt for, disburse, and expend federal and state moneys and other moneys, public or private, made available by grant or loan or both, to accomplish, in whole or in part, any of the purposes of this chapter.
Source: SL 1978, ch 344, § 23.
49-17A-26. Designation of railroad division as agent of authority--Funds held in separate account--Vouchers and warrants.
An authority may designate the secretary of transportation as its agent to accept, receive, receipt for, and disburse federal and state moneys, and other moneys, public or private, made available by grant or loan or both, to accomplish in whole or in part, any of the purposes of this chapter. It may designate the secretary of transportation as its agent to contract for and supervise the planning, acquisition, development, construction, improvement, maintenance, equipping, or operation of any railroad or railroad facility.
All funds received by the secretary of transportation pursuant to this section shall be deposited in the state treasury. Unless otherwise prescribed by the agency from which such funds were received, the funds shall be kept in separate accounts according to the purposes for which the funds were made available. Such funds shall be held by the state in trust for such purposes, and paid on warrants drawn by the state auditor on vouchers approved by the secretary of transportation.
Source: SL 1978, ch 344, § 24.
49-17A-27. Issuance of bonds and notes--Purposes for which proceeds used.
An authority may from time to time issue its bonds or notes in such principal amounts as the authority shall deem necessary to carry out any of its corporate purposes and powers, including, but not limited to the funding or refunding of the principal of or interest or redemption premiums on, any bonds or notes issued by it whether or not the bonds or notes or interest to be funded or refunded have or have not become due, the establishment or increase of reserves to secure or to pay the bonds or notes or interest thereon, and the payment of or establishment of reserves for all other costs or expenses of the authority incident to and necessary to carry out its corporate purposes and powers.
Source: SL 1978, ch 344, § 25.
49-17A-28. Revenues and funds pledged to payment of bonds and notes--Negotiability.
Every issue of bonds or notes of the authority shall be payable out of revenues or funds of the authority, subject only to agreements with the holders of particular bonds or notes pledging any particular revenues or funds. An authority may issue types of bonds or notes as it may determine, including those payable as to principal and interest solely from one or more revenue producing contracts made by the authority or from its revenues generally. Any bonds or notes may additionally be secured by a pledge of any grant, subsidy or contribution from any public agency, or other person, or a pledge of revenue, income or funds from any source whatsoever. All such bonds and notes shall be negotiable within the meaning of the Uniform Commercial Code, subject only to any registration requirement.
Source: SL 1978, ch 344, § 26.
49-17A-29. Resolutions for bonds or notes--Security agreement--Terms and conditions.
Bonds or notes of the authority shall be authorized by resolution of the commissioners and may be issued under the resolution or under a trust indenture or other security agreement, in one or more series, and shall bear such date or dates, mature at such time or times, bear interest at such rate or rates, be in such denominations, be in such form, either coupon or registered, carry such conversion, exchange and registration privileges, have such rank or priority, be executed in such manner, be payable in such medium of payment at such place or places within or outside the state, be subject to such terms of redemption with or without premium, and contain or be subject to such other terms as the resolution, trust indenture or security agreement may provide, and shall not be restricted by any other law limiting amounts, maturities, interest rates, or other terms or obligations of public agencies or private persons.
Source: SL 1978, ch 344, § 27.
49-17A-30. Mortgages and deeds of trust to secure obligations--Filing.
For the security of such bonds or notes the authority may execute and make mortgages or deeds of trust of the whole or any part of its property which, together with any assignments or release thereof, shall be filed in the Office of the Secretary of State.
Source: SL 1978, ch 344, § 28; SL 1986, ch 27, § 52.
49-17A-31. Bond recital conclusive as to authority and purpose.
Any bond reciting that it has been issued by the authority pursuant to the provisions and for the purposes of this chapter shall be conclusively deemed to have been issued pursuant to such provisions and for such purposes.
Source: SL 1978, ch 344, § 29.
49-17A-32. Continuing validity of signatures on bonds and notes--Temporary bonds.
Any bonds or notes may be issued and delivered notwithstanding that any of the commissioners or officers executing them shall have ceased to hold office at the time of actual delivery. Pending preparation of definitive bonds, an authority may issue temporary bonds which shall be exchanged for definitive bonds.
Source: SL 1978, ch 344, § 30.
49-17A-33. Sale of bonds.
Bonds issued shall be sold at public or private sale for a price and in a manner determined by the authority.
Source: SL 1978, ch 344, § 31.
49-17A-34. Bonds exempt from taxation.
Bonds issued by an authority pursuant to the provisions of this chapter, together with interest and income therefrom, shall be exempt from all taxes.
Source: SL 1978, ch 344, § 32.
49-17A-35. Persons executing bonds not personally liable.
The commissioners of an authority or any person executing such bonds shall not be liable personally by reason of their issuance.
Source: SL 1978, ch 344, § 33.
49-17A-36. Arrangements for operating and providing railroad service.
The authority may enter into contracts, leases, and other arrangements for such term as the authority may determine with any persons:
(1) Granting the privilege of using or improving the railroad or any portion or facility or space for commercial purposes;
(2) Conferring the privilege of supplying goods, commodities, things, services, or facilities along the railroad;
(3) Making available services to be furnished by the authority or its agents.
In each case the authority may establish the terms and conditions and fix the charges, rentals, or fees for the privileges or services, which shall be reasonable and uniform for the same class of privilege or service.
Source: SL 1978, ch 344, § 34.
49-17A-37. Grant of operating privileges and use of railroad and facilities.
Except as may be limited by the terms and conditions of any grant, loan or agreement authorized by this chapter, an authority may by contract, lease, or otherwise grant, for such consideration and term as it may determine, to any person the privilege of operating or using any railroad or railroad facilities or property, owned or controlled by the authority.
Source: SL 1978, ch 344, § 35; SL 1981, ch 333, § 3.
49-17A-39. Disposition of property of authority.
Except as may be limited by the terms and conditions of any grant, loan, or agreement, made or received by the authority, an authority may, by sale, lease, or otherwise, dispose of any of its property, or portion thereof or interest therein.
Source: SL 1978, ch 344, § 36.
49-17A-40. Citation of chapter.
This chapter may be cited as the "Regional Railroad Authorities Act."
Source: SL 1978, ch 344, § 39.
CHAPTER 49-28
MOTOR CARRIER REGULATION
49-28-1 Definitions.
49-28-2 49-28-2, 49-28-2.1. Repealed by SL 1995, ch 259, §§ 35, 36.
49-28-3 Motor carrier status as question of fact.
49-28-4 49-28-4, 49-28-4.1. Repealed by SL 1995, ch 259, §§ 3, 4.
49-28-5 49-28-5 to 49-28-8. Repealed by SL 1985, ch 374, § 49.
49-28-8.1 49-28-8.1. Repealed by SL 1995, ch 259, § 5.
49-28-8.2 49-28-8.2. Repealed by SL 1995, ch 259, § 37.
49-28-9 49-28-9. Repealed by SL 1985, ch 374, § 49.
49-28-9.1 49-28-9.1. Repealed by SL 1995, ch 259, § 6.
49-28-10 49-28-10. Repealed by SL 1985, ch 374, § 49.
49-28-10.1 49-28-10.1. Repealed by SL 1995, ch 259, § 7.
49-28-11 49-28-11. Repealed by SL 1985, ch 374, § 49.
49-28-12 49-28-12 to 49-28-14. Repealed by SL 1995, ch 259, §§ 8 to 10.
49-28-15 49-28-15. Repealed by SL 1981, ch 334, § 6.
49-28-15.1 49-28-15.1 to 49-28-18. Repealed by SL 1995, ch 259, §§ 11 to 14.
49-28-19 49-28-19. Repealed by SL 1985, ch 374, § 49.
49-28-19.1 49-28-19.1, 49-28-20. Repealed by SL 1995, ch 259, §§ 15, 16.
49-28-21 49-28-21, 49-28-22. Repealed by SL 1985, ch 374, § 49.
49-28-23 49-28-23. Repealed by SL 1981, ch 334, § 9.
49-28-24 49-28-24 to 49-28-27. Repealed by SL 1995, ch 259, §§ 17 to 21.
49-28-28 49-28-28. Repealed by SL 1994, ch 356, § 2.
49-28-29 49-28-29 to 49-28-30.1. Repealed by SL 1995, ch 259, §§ 22 to 24.
49-28-31 49-28-31. Repealed by SL 1981, ch 334, § 11.
49-28-32 49-28-32. Repealed by SL 1985, ch 374, § 49.
49-28-33 Rules governing motor carriers--Promulgation--Conformity with federal rules.
49-28-34 49-28-34. Repealed by SL 1985, ch 374, § 49.
49-28-35 49-28-35. Repealed by SL 1995, ch 259, § 26.
49-28-36 49-28-36 to 49-28-36.2. Repealed by SL 2014, ch 219, §§ 1 to 3.
49-28-36.3 49-28-36.3. Repealed by SL 1989, ch 398, § 2.
49-28-36.4 49-28-36.4 to 49-28-36.6. Repealed by SL 2014, ch 219, §§ 4 to 6.
49-28-36.7 Application for permit.
49-28-36.8 49-28-36.8. Repealed by SL 2014, ch 219, § 7.
49-28-37 49-28-37. Repealed by SL 1985, ch 374, § 49.
49-28-38 49-28-38. Repealed by SL 1995, ch 259, § 27.
49-28-39 49-28-39. Repealed by SL 1985, ch 374, § 49.
49-28-40 49-28-40. Repealed by SL 1995, ch 259, § 28.
49-28-40.1 49-28-40.1. Repealed by SL 1993, ch 347, § 1.
49-28-40.2 49-28-40.2. Repealed by SL 2014, ch 219, § 8.
49-28-41 Cooperation with FMCSA--Department as party in proceedings before FMCSA.
49-28-41.1 Appearance before FMCSA--Department substituted as party.
49-28-42 49-28-42, 49-28-43. Repealed by SL 1995, ch 259, §§ 30, 31.
49-28-44 49-28-44. Repealed by SL 1981, ch 334, § 16.
49-28-45 Disposition of fees received from carriers.
49-28-46 49-28-46. Repealed by SL 1981, ch 334, § 17.
49-28-47 49-28-47. Repealed by SL 1985, ch 374, § 49.
49-28-48 49-28-48. Repealed by SL 1995, ch 259, § 38.
49-28-49 49-28-49. Repealed by SL 1975, ch 284, § 3.
49-28-50 Reports and statements by carriers.
49-28-51 Procedure before department.
49-28-52 Enforcement of department's orders.
49-28-53 Procedure for rehearing, review, or appeal.
49-28-54 49-28-54, 49-28-55. Repealed by SL 2014, ch 219, §§ 9, 10.
49-28-56 49-28-56 to 49-28-60. Repealed by SL 1974, ch 298.
49-28-61 49-28-61. Repealed by SL 1985, ch 374, § 49.
49-28-62 Violation of chapter as misdemeanor.
49-28-63 Noncompliance with chapter or with department order as misdemeanor.
49-28-64 Discrimination, false statements or documents, and evasion of regulation as misdemeanors.
49-28-65 49-28-65. Repealed by SL 2006, ch 234, § 20.
49-28-66 Stopping of vehicles to determine compliance--Failure to stop as misdemeanor.
49-28-67 49-28-67. Repealed by SL 2006, ch 234, § 22.
49-28-68 49-28-68. Repealed by SL 1995, ch 259, § 34.
49-28-69 Compliance with the Unified Carrier Registration Act.
49-28-70 Definitions relating to motor carrier transportation contracts.
49-28-71 Indemnity provisions in motor carrier transportation contracts.
49-28-72 Intermodal equipment agreements.
49-28-1. Definitions.
Terms used in this chapter mean:
(1) " Department," the Department of Revenue;
(2) "Corporation," a corporation, company, association, or joint stock association;
(3) "For hire," for remuneration of any kind, paid or promised for the transportation of persons or property. An occasional accommodative or reciprocal transportation service by a person not in the transportation business while on an errand for such person's benefit, is not a service for hire, even though the person transported shares in the cost or pays for the service;
(4) " FMCSA," Federal Motor Carrier Safety Administration;
(5) "Exempt motor carrier," an interstate motor carrier who is exempt from the FMCSA's jurisdiction over interstate transportation;
(6) "Regulated motor carrier," an interstate motor carrier who is subject to the FMCSA's jurisdiction over interstate transportation;
(7) "Motor carrier," any person, corporation, lessee, trustee, or receiver operating any motor vehicle, trailer, or semitrailer on any public highway in this state for the transportation of persons or property, for hire;
(8) "Motor vehicle," all vehicles or machines propelled by any power other than muscular used upon the public highways for the transportation of persons or property;
(9) "Permit," the permit authorized to be issued under this chapter;
(10) "Person," a natural person, firm, corporation, limited liability company, copartnership, company, association, joint stock company, or, the lessee, trustee, or receiver appointed by any court for any one of the foregoing;
(11) "Public highway," every street, alley, public road, public thoroughfare, or highway in this state;
(12) "Registration state," the state in which a regulated motor carrier selects to register its interstate motor carrier operations pursuant to 49 USC § 14504 and 49 CFR PART 367 as of January 1, 2005;
(13) "Semitrailer," any vehicle of the trailer type, equipped with a kingpin assembly, designed and used in conjunction with a fifth wheel connecting device on a motor vehicle and constructed so that some part of its weight and that of its load rests upon or is carried by another vehicle;
(14) "Trailer," every vehicle without motive power designed to carry property or persons wholly on its own structure and to be drawn by a motor vehicle;
(15) "Board," the Surface Transportation Board as defined in 49 USC § 13102(1) as of January 1, 2005;
(16) "Secretary," the secretary of the United States Department of Transportation as that term is defined in 49 USC § 13102(17) as of January 1, 2005.
Source: SDC 1939, § 44.0401; SL 1939, ch 173; SL 1945, ch 192; SL 1949, ch 168; SL 1950 (SS), ch 10; SL 1953, ch 236; SL 1955, ch 178; SL 1981, ch 334, § 1; SL 1985, ch 374, § 1; SL 1989, ch 256, § 10; SL 1989, ch 399, § 2; SL 1994, ch 351, § 133; SL 1994, ch 356, § 1; SL 1995, ch 259, § 1; SL 1999, ch 223, § 1; SL 2006, ch 234, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
49-28-3. Motor carrier status as question of fact.
Whether or not a motor vehicle, trailer, or semitrailer is operated by a motor carrier within the meaning of subdivisions 49-28-1(7) and (8) is a question of fact to be determined by the department.
Source: SDC 1939, § 44.0401 (9); SL 1939, ch 173; SL 1949, ch 168; SL 1950 (SS), ch 10; SL 1953, ch 236; SL 1955, ch 178; SL 1985, ch 374, § 4; SL 1995, ch 259, § 2; SL 2006, ch 234, § 2.
49-28-33. Rules governing motor carriers--Promulgation--Conformity with federal rules.
The department may pursuant to chapter 1-26 adopt rules to establish uniform procedures for the administration of the provisions of this chapter. Rules may be adopted by the department governing motor carriers in the following areas:
(1) Filing information and reports; and
(2) Registration and identification when performing interstate operations within the state.
The Director of the Division of Highway Patrol may promulgate reasonable rules pursuant to chapter 1-26 to promote safety of operations, standards, and safety of equipment. The rules shall conform as nearly as possible with the rules and regulations for safety of operations and equipment adopted by the U.S. Department of Transportation, pursuant to 49 U.S.C. Chapter 311 as amended through January 1, 2005.
Source: SDC 1939, § 44.0403; SL 1981, ch 334, § 12; SL 1983, ch 335, § 29; SL 1984, ch 308; SL 1986, ch 22, § 14; SL 1995, ch 259, § 25; SL 1999, ch 223, § 2; SL 2006, ch 234, § 3.
49-28-36.7. Application for permit.
A motor carrier shall make an application for a single trip permit as required by the department, and the permit secured at a port of entry or by such other means designated by the department prior to beginning movement over the state's highways. The application shall include the applicant's name and business address, a description of the vehicle, and the route of travel suggested for the trip.
Source: SL 1985, ch 373, § 2; SL 1999, ch 223, § 8; SL 2006, ch 234, § 9; SL 2021, ch 125, § 10.
49-28-41. Cooperation with FMCSA--Department as party in proceedings before FMCSA.
The department shall cooperate with the FMCSA, in the administration of motor carrier laws. The department may appear before the FMCSA, the secretary, or the board as a party litigant in all proceedings involving the regulation and control of motor carriers in interstate commerce if, in its opinion, the public interest of the state justifies such participation.
Source: SDC 1939, § 44.0403; SL 1985, ch 374, § 35; SL 1999, ch 223, § 9; SL 2006, ch 234, § 10.
49-28-41.1. Appearance before FMCSA--Department substituted as party.
If the department determines upon its own motion or upon the petition of a resident of this state that it is in the best interests of the state, it may appear before the FMCSA, the secretary, or the board as a party in all proceedings involving the regulation and control of motor carriers in interstate commerce. If any matter is pending before the FMCSA, the secretary, or the board between a resident of this state as petitioner and a motor carrier doing business in this state and engaged in interstate transportation of freights, charging the carrier with any violation of the Interstate Commerce Act, upon application of the petitioner, the department may appear therein and be substituted as a party in place of such petitioners and thereafter the matter shall be prosecuted by the department at the expense of the state in the same manner as though originally begun by it.
Source: SL 1987, ch 350, § 3; SL 1999, ch 223, § 10; SL 2006, ch 234, § 11.
49-28-45. Disposition of fees received from carriers.
All fees or money received by the department under this chapter shall be reported monthly to and deposited with the state treasurer, and credited to the general fund of the state. Those fees and money so deposited shall be used to reimburse the state for the added expense which the state incurs in the administration and enforcement of this chapter and chapter 32-9, and for policing the highways over which such motor vehicles travel.
Source: SDC 1939, § 44.0413; SL 1939, ch 175; SL 1943, ch 159, § 1; SL 1985, ch 374, § 36; SL 2006, ch 234, § 12.
49-28-50. Reports and statements by carriers.
Each motor carrier shall prepare and file with the department, at such time, and in the form to be prescribed by the department, reports and statements giving to the department such information as it requires in order to perform its duties under this chapter.
Source: SDC 1939, § 44.0419; SL 1975, ch 284, § 2; SL 1981, ch 334, § 18; SL 1985, ch 374, § 38; SL 2006, ch 234, § 13.
49-28-51. Procedure before department.
Except as otherwise provided in this chapter or the rules adopted pursuant to this chapter, chapter 1-26 shall govern in all proceedings and investigations before the department in cases arising in connection with the performance by the department of its duties or the exercise of its jurisdiction under this chapter.
Source: SDC 1939, § 44.0417; SL 1985, ch 374, § 39; SL 2006, ch 234, § 14.
49-28-52. Enforcement of department's orders.
Orders and final determinations of the department in all proceedings pursuant to this chapter shall be enforced in the manner provided by law for enforcement of orders of the department.
The department may apply to the circuit court in any circuit in which any person or motor carrier operates or maintains a principal headquarters for the enforcement of this chapter and the rules adopted pursuant thereto. The court shall have jurisdiction by writ of injunction, or by other proceedings, mandatory or otherwise, to restrict and enjoin any such person or motor carrier, its officers, agents, employees, or representatives, from further violations of the provisions of law or any lawful order, term, or condition prescribed by the department and enjoining obedience thereto.
Source: SDC 1939, § 44.0417; SL 1985, ch 374, § 40; SL 2006, ch 234, § 15.
49-28-53. Procedure for rehearing, review, or appeal.
All final orders, determinations, or decisions of the department in proceedings brought pursuant to this chapter are subject to rehearing in accordance with department rules and are subject to review or appeal in accordance with chapter 1-26.
Source: SDC 1939, § 44.0418; SL 1985, ch 374, § 41; SL 1995, ch 259, § 32; SL 2006, ch 234, § 16.
49-28-62. Violation of chapter as misdemeanor.
Any person who operates any motor vehicle for the transportation of persons or property for hire on any public highway in this state, except in accordance with the provisions of this chapter, is guilty of a Class 2 misdemeanor. A subsequent violation of this section within any six-month period is a Class 1 misdemeanor.
Source: SDC 1939, § 44.9925; SL 1985, ch 374, § 44; SL 1992, ch 327, § 1.
49-28-63. Noncompliance with chapter or with department order as misdemeanor.
Any motor carrier which is subject to this chapter or, if any such motor carrier is a corporation, any director or officer thereof or any receiver, trustee, lessee, agent, or person acting for or employed by such corporation, who violates or fails to comply with or who procures, aids, or abets in the violation of any provision of this chapter, or who fails to obey, observe, or comply with any lawful order, decision, rule, regulation, direction, demand, or requirement of the department, or any part or provision thereof, is guilty of a Class 2 misdemeanor.
Source: SDC 1939, § 44.9926; SL 1985, ch 374, § 45; SL 2006, ch 234, § 19.
49-28-64. Discrimination, false statements or documents, and evasion of regulation as misdemeanors.
Any carrier or any officer, employee, agent, or representative thereof who knowingly and willfully fraudulently seeks to evade or defeat regulation as in this chapter provided for motor carriers is guilty of a Class 2 misdemeanor.
Source: SDC 1939, § 44.9931 as enacted by SL 1949, ch 177; SL 1985, ch 374, § 46; SL 1995, ch 259, § 33.
49-28-66. Stopping of vehicles to determine compliance--Failure to stop as misdemeanor.
The inspectors of the Department of Public Safety or any law enforcement officer may require the driver of a commercial vehicle to stop a vehicle at any time for inspection to determine if the provisions of this chapter are being complied with. Any driver who fails to stop and submit the driver's vehicle to such inspection is guilty of a Class 2 misdemeanor.
Source: SL 1971, ch 261, § 2; SL 1983, ch 15, § 111; SL 1983, ch 335, § 31; SL 1985, ch 374, § 48; SL 2003, ch 272 (Ex. Ord. 03-1), § 19; SL 2006, ch 234, § 21.
49-28-69. Compliance with the Unified Carrier Registration Act.
Notwithstanding any provisions of this chapter, the department may participate in and comply with the Unified Carrier Registration Act of 2005.
Source: SL 2006, ch 234, § 23.
49-28-70. Definitions relating to motor carrier transportation contracts.
Terms used in this section and § 49-28-71 mean:
(1) "Affiliate," any employee or agent of a promisee, or any independent contractor who is directly responsible to a promisee other than a motor carrier that is a party to a motor carrier transportation contract with the promisee or an employee or agent of such motor carrier or an independent contractor directly responsible to such motor carrier;
(2) "Motor carrier transportation contract," a contract or agreement between a motor carrier and a promisee covering the transportation of property for hire by the motor carrier; the motor carrier's entrance on property for the purpose of loading, unloading, or transporting property for hire; or any service of the motor carrier that is incidental to these activities, including the storage of property;
(3) "Promisee," any person who enters into a motor carrier transportation contract with a motor carrier.
Source: SL 2012, ch 228, § 1.
49-28-71. Indemnity provisions in motor carrier transportation contracts.
Notwithstanding any other law, no provision of a motor carrier transportation contract, and no covenant or agreement collateral to or affecting a motor carrier transportation contract, may require the motor carrier to indemnify, hold harmless, or defend the promisee or affiliate, or have the effect of indemnifying, holding harmless, or defending the promisee or affiliate from or against any liability for loss or damage resulting from the negligence, intentional acts, or omissions of the promisee or affiliate. Any provision of any contract or agreement entered into after July 1, 2012 that violates this section is void and unenforceable.
Source: SL 2012, ch 228, § 2.
49-28-72. Intermodal equipment agreements.
Sections 49-28-70 and 49-28-71 do not apply to the Uniform Intermodal Interchange and Facilities Access Agreement administered by the Intermodal Association of North America or any other agreement providing for the interchange, use, or possession of intermodal chassis, containers, or other intermodal equipment.
Source: SL 2012, ch 228, § 3.
CHAPTER 49-28A
HAZARDOUS MATERIAL TRANSPORTATION SAFETY
49-28A-1 Definition.
49-28A-2 Rules authorized.
49-28A-3 Adoption of federal regulations--Violation as misdemeanor.
49-28A-3.1 Qualified intrastate drivers under age twenty-one.
49-28A-3.2 Application of federal hours-of-service regulations to gas or electric utility service vehicles.
49-28A-3.3 Implementation of the 2004 federal hours-of-service amendment to preserve federal funding--Exemption.
49-28A-4 49-28A-4. Repealed by SL 1986, ch 395, § 2.
49-28A-5 Annual review of regulations.
49-28A-6 Inspection of vehicles and records.
49-28A-7 Accident involving spill or leakage--Notice--Coordination of actions.
49-28A-8 Acceptance and administration of grants and gifts.
49-28A-9 49-28A-9. Repealed by SL 1986, ch 395, § 3.
49-28A-10 Warning placards required on storage facilities for hazardous or explosive materials--Violation as misdemeanor.
49-28A-1. Definition.
The term, "motor vehicle", as used in this chapter means any self-propelled or towed vehicle used on the highways in commerce to principally transport passengers or cargo:
(1) If the vehicle has a gross vehicle weight of ten thousand and one or more pounds;
(2) If the vehicle is designed to transport more than fifteen passengers, including the driver; or
(3) If the vehicle is used in the transportation of materials found by the United States Department of Transportation to be hazardous for the purpose of the Hazardous Materials Transportation Act, as amended (49 U.S.C. § 1801 et seq.).
Source: SL 1984, ch 309, § 1; SL 1993, ch 235, § 5.
49-28A-2. Rules authorized.
The director of the Division of the Highway Patrol may promulgate rules in accordance with chapter 1-26, for the enforcement of motor carrier safety regulations and for the safe transportation of hazardous materials by a motor vehicle. The rules may not apply to any radioactive materials being transported under a permit issued by the U.S. Nuclear Regulatory Commission.
Source: SL 1981, ch 241, § 1; SDCL Supp, § 32-9-48; SL 1984, ch 309, § 2; SL 1986, ch 22, § 15.
49-28A-3. Adoption of federal regulations--Violation as misdemeanor.
The state hereby adopts Title 49 of the Code of Federal Regulations, subtitle B, chapter I, subchapter A, part 107 (subparts F and G only) and subchapter C, parts 171 to 180, inclusive, as amended through January 1, 2024, and Title 49 of the Code of Federal Regulations, subtitle B, chapter III, subchapter B, part 387 and parts 390 to 397, inclusive, as amended through January 1, 2024, with the following modifications:
(1) All references to interstate operations must also include intrastate operations except that drivers and motor carriers operating intrastate vehicles and combinations of vehicles with two axles or less or with a gross vehicle weight rating of not more than twenty-six thousand pounds that are not used to transport hazardous materials requiring placarding under part 177, or designed to transport more than fifteen passengers, including the driver, are not subject to parts 390 to 397, inclusive;
(2) For the purposes of 49 C.F.R. § 391.11(b)(1), a driver must be at least twenty-one years old if engaged in interstate commerce, or transporting hazardous material of a type or quantity requiring placarding under part 177, or operating a vehicle designed to transport more than fifteen passengers, including the driver. All other drivers must be at least eighteen years old;
(3) Unless required by an employer to be medically certified under Title 49 of the Code of Federal Regulations, intrastate drivers are exempt from the physical requirements of 49 C.F.R. § 391.41.
Any violation of part 387 and parts 390 to 396, inclusive, the motor carrier safety requirements governing the qualifications of drivers, driving of motor vehicles, parts and accessories necessary for safe operation, notification and reporting of accidents, assistance with investigations and special studies, hours of service of drivers, inspection, repair, and maintenance is a Class 2 misdemeanor. Any violation of the hazardous materials regulations pertaining to registration of cargo tank motor vehicles, registration of persons who offer or transport hazardous materials, general information, regulations and definitions, hazardous materials tables, hazardous materials communication regulations, and test and inspection marking requirements found in parts 107 (subparts F and G only), 171, 172, and 178 to 180, inclusive, is a Class 2 misdemeanor. Any violation of the hazardous materials regulations pertaining to packaging, prohibited shipments, loading and unloading, segregation and separation, retesting and inspection of cargo tanks, and other carriage by regulations found in parts 173 to 180, inclusive, or violation of the driving and parking rules in part 397, is a Class 1 misdemeanor.
Source: SL 1981, ch 241, § 2; SDCL Supp, § 32-9-49; SL 1984, ch 309, § 3; SL 1986, ch 22, § 16; SL 1986, ch 395, § 1; SL 1989, ch 400; SL 1991, ch 383; SL 1993, ch 235, § 6; SL 1995, ch 262; SL 1997, ch 265, § 1; SL 1998, ch 273, § 1; SL 2001, ch 254, § 1; SL 2002, ch 213, § 1; SL 2003, ch 237, § 1; SL 2004, ch 282, § 1; SL 2005, ch 242, § 1; SL 2006, ch 235, § 1; SL 2007, ch 265, § 1; SL 2008, ch 239, § 1; SL 2009, ch 237, § 1; SL 2010, ch 221, § 1; SL 2011, ch 205, § 1; SL 2012, ch 229, § 1; SL 2013, ch 236, § 1; SL 2014, ch 220, § 1; SL 2015, ch 230, § 1; SL 2016, ch 225, § 1; SL 2017, ch 196, § 1; SL 2018, ch 263, § 1; SL 2018, ch 264, § 1; SL 2019, ch 198, § 1; SL 2020, ch 201, § 1; SL 2021, ch 199, § 1; SL 2022, ch 169, § 1; SL 2023, ch 157, § 1; SL 2024, ch 187, § 1.
49-28A-3.1. Qualified intrastate drivers under age twenty-one.
Notwithstanding the provisions of § 49-28A-3, any person under the age of twenty-one but over the age of eighteen may become a qualified intrastate driver if the person is certified as a private applicator pursuant to § 38-21-23.
Source: SL 1988, ch 374; SL 2009, ch 238, § 1.
49-28A-3.2. Application of federal hours-of-service regulations to gas or electric utility service vehicles.
Hours-of-service regulations promulgated by the United States Department of Transportation at 68 Federal Register 22456, in April 2003, (Federal hours-of-service amendments) shall apply to utility service vehicles owned or operated by gas or electric utilities while engaged in intrastate commerce within this state, on or after January 1, 2006. However, hours-of-service regulations that were applicable in the State of South Dakota immediately prior to January 4, 2004, shall remain applicable to gas or electric utility service vehicles until January 1, 2006.
Source: SL 2004, ch 282, § 2.
49-28A-3.3. Implementation of the 2004 federal hours-of-service amendment to preserve federal funding--Exemption.
If the United States Department of Transportation issues an official formal finding that one or more portions of § 49-28A-3, §§ 49-28A-3.2 and 49-28A-3.3, inclusive, may result in the loss of Federal Motor Carrier Safety Assistance Program funding, the Department of Public Safety may, by rule promulgated pursuant to chapter 1-26, implement the 2004 federal hours-of-service amendment as may be appropriate to preserve such federal funding.
If federal law or regulations are amended, or otherwise altered under law, at any time to cause to be exempted a class or group of vehicles, which class or group would include such gas or electric utility service vehicles within this state, from the hours-of-service requirements, any exemption shall be effective in this state immediately for the duration of the federal exemption.
Source: SL 2004, ch 282, § 3.
49-28A-5. Annual review of regulations.
The director of the Division of the Highway Patrol shall annually review the regulations for motor carrier safety and the transportation of hazardous materials as contained in the code of federal regulations to determine if the rules promulgated pursuant to § 49-28A-2 should be amended.
Source: SL 1981, ch 241, § 3; SDCL Supp, § 32-9-50; SL 1984, ch 309, § 4; SL 1986, ch 22, § 17.
49-28A-6. Inspection of vehicles and records.
The Department of Public Safety shall have the right of entry to inspect a motor carrier's vehicles and records for compliance with the rules adopted under § 49-28A-2. This includes authority to break cargo seals to inspect the stability of the load and its hazardous nature and to enter upon the carrier's premises and inspect and copy documents.
Source: SL 1984, ch 309, § 4A; SL 2003, ch 272 (Ex. Ord. 03-1), § 22.
49-28A-7. Accident involving spill or leakage--Notice--Coordination of actions.
In the event of an accident resulting in a spill or leakage of a hazardous material, the motor carrier or the first law enforcement officer to arrive at the scene of the accident shall immediately contact the Department of Public Safety. The Department of Public Safety shall coordinate all actions in response to a spill or leakage of a hazardous material.
Source: SL 1981, ch 241, § 4; SDCL Supp, § 32-9-51; SL 1984, ch 309, § 5; SL 2006, ch 235, § 2.
49-28A-8. Acceptance and administration of grants and gifts.
The Department of Public Safety and the Department of Agriculture and Natural Resources may accept and administer grants and gifts for carrying out functions pursuant to this chapter, subject to the provisions of chapters 4-8, 4-8A and 4-8B.
Source: SL 1981, ch 241, § 5; SDCL Supp, § 32-9-52; SL 1984, ch 309, § 6; SL 1991, ch 17, § 17; SL 2003, ch 272 (Ex. Ord. 03-1), § 22; SL 2021, ch 1 (Ex. Ord. 21-3), § 14, eff. Apr. 19, 2021.
49-28A-10. Warning placards required on storage facilities for hazardous or explosive materials--Violation as misdemeanor.
No person may store any hazardous materials or class 1.1, 1.2, 1.3, 1.4, or 1.5 explosives, as outlined under 49 CFR 172, as amended through January 1, 2006, in any storage facility unless the storage facility has placards warning of the storage of hazardous or explosive materials. The placards at a storage facility shall be in plain sight, shall be so located that a bullet passing through any of the placards will not strike the storage facility, and may not be more than one hundred feet apart. The owner of any storage facility storing hazardous or explosive material shall maintain shipping records on such hazardous or explosive materials on the premises and shall provide the shipping records to any law enforcement agency or fire department upon demand. A violation of this section is a Class 1 misdemeanor. For the purposes of this section, a storage facility is any enclosed structure where materials are kept or warehoused.
The provisions of this section do not apply to a retail business establishment licensed under the provisions of chapter 10-45, residential property, a storage shed on residential property or any farm building, but only to warehouse facilities whose structure is separated from retail establishments.
Source: SL 1991, ch 384; SL 2006, ch 236, § 1.
CHAPTER 49-30
TELEPHONE AND TELEGRAPH CORPORATIONS
49-30-1 Organization of company--Articles of incorporation--Contents of articles--Subscription by incorporators.
49-30-2 Affidavit of directors--Contents of affidavit--Filing with secretary of state.
49-30-3 Certificate of incorporation--Name of corporation--Powers.
49-30-4 Powers of corporation--Survey for proposed pole line--Entry upon property.
49-30-5 Powers of corporation--Holding property for accessory facilities.
49-30-6 Powers of corporation--Purchase of real property for lines--Disposition of property.
49-30-7 Powers of corporation--Construction along waters and highways.
49-30-8 Powers of corporation--Connection with preexisting lines--Expense of connection.
49-30-9 Powers of corporation--Transmission of messages.
49-30-10 Powers of corporation--Accessory facilities.
49-30-11 Powers of corporation--Rules and regulations for transmission of messages.
49-30-12 Powers of corporation--Condemnation of real property.
49-30-13 Board of directors--Election--Terms of office--Director as stockholder.
49-30-14 Voting for directors--Filling vacancies.
49-30-15 Meeting for election of directors--Notice of meeting--Waiver of notice.
49-30-16 Rural telephone companies--Inability to procure majority of stockholders at meeting--Powers of stockholders attending--Binding effect of actions taken.
49-30-17 Notice to stockholders--Notice by mail.
49-30-18 Exhibition of corporate books and records.
49-30-19 Officers of corporation--Appointment by directors.
49-30-20 Subscriptions for capital stock.
49-30-21 Failure to pay for stock--Collection by directors--Forfeiture of previous payments.
49-30-22 Increasing capital stock--Two-thirds vote required--Notice of meeting--Effective date of increase.
49-30-23 Transfer of stock--Stock deemed personal property.
49-30-24 Liability of stockholders--Stock held by fiduciary or as collateral security.
49-30-25 Meetings by teleconference.
49-30-1. Organization of company--Articles of incorporation--Contents of articles--Subscription by incorporators.
Any number of persons not less than three may form a corporation for the purpose of constructing, maintaining, and operating lines of telegraph or telephone in this state, and for the purpose of carrying on the business of a telegraph or telephone company, or for the purpose of maintaining and operating any lines of telegraph or telephone already constructed, by making articles of incorporation in which shall be stated:
(1) The name of the corporation, which may not be the same as that of any other corporation owning or operating lines of telegraph or telephone in this state;
(2) The place from which and to which such lines of telegraph or telephone are to be constructed, or maintained and operated, as the case may be;
(3) The estimated length of such lines of telegraph or telephone, and the name of each county in this state through or into which they are extended or intended to be constructed;
(4) The amount of capital stock of the corporation, the number of shares of which it shall consist, and, if such stock shall consist of common and preferred stock, the number and amount of each class;
(5) The names and residences of the directors of the corporation who shall manage its affairs for the first year and until others are chosen in their places, and who may not be less than three nor more than thirteen in number;
(6) The term for which the corporation shall exist, which may be perpetual;
(7) The place within this state where the principal office of the corporation shall be maintained, and where the corporate records and stock books of the corporation shall be kept.
Each of the incorporators shall subscribe to the articles of incorporation the incorporator's name, place of residence, and the number of shares of stock the incorporator agrees to take in such corporation.
Source: SDC 1939, § 52.1303; SL 2001, ch 255, § 1; SL 2018, ch 265, § 1.
49-30-2. Affidavit of directors--Contents of affidavit--Filing with secretary of state.
There shall be annexed to the articles of incorporation described by § 49-30-1 an affidavit of at least three of the directors therein named that the signatures thereto are genuine and that it is intended in good faith to construct, or maintain and operate, the lines of telegraph or telephone therein mentioned, and thereupon such articles of incorporation and affidavit shall be filed in the office of the secretary of state, who shall endorse thereon the date of their filing and record the same.
Source: SDC 1939, § 52.1303.
49-30-3. Certificate of incorporation--Name of corporation--Powers.
After filing of the articles of incorporation and affidavit pursuant to § 49-30-2, a certificate of corporate existence, under the seal of the state and signed by the Governor and secretary of state, shall be issued to the subscribers to such articles; and all such persons who shall thereafter become stockholders in such corporation shall be a corporation by the name specified in such articles, and shall possess all the powers and privileges and be subject to all the provisions of this chapter applicable thereto.
Source: SDC 1939, § 52.1303.
49-30-4. Powers of corporation--Survey for proposed pole line--Entry upon property.
Every corporation formed under the provisions of this chapter, and every corporation formed under the laws of any other state or territory or of the United States, owning or operating lines of telegraph or telephone within this state, shall have power to cause such examination and surveys for its proposed lines of telegraph or telephone to be made as may be necessary to the selection of the most advantageous routes, and for such purposes, by its officers or agents and servants, to enter upon the lands or waters of any person, but subject to responsibility for all damage that shall be done thereto.
Source: SDC 1939, § 52.1311 (1).
49-30-5. Powers of corporation--Holding property for accessory facilities.
Every corporation formed under the provisions of this chapter, and every corporation formed under the laws of any other state or territory or of the United States, owning or operating lines of telegraph or telephone within this state, shall have power to make and hold such voluntary grants of real and other property as may be made to it to aid in the construction, maintenance, and accommodation of its line of telegraph or telephone, but the real property received by voluntary grant shall be held and used for the purposes of such grant only.
Source: SDC 1939, § 52.1311 (2).
49-30-6. Powers of corporation--Purchase of real property for lines--Disposition of property.
Every corporation formed under the provisions of this chapter, and every corporation formed under the laws of any other state or territory or of the United States, owning or operating lines of telegraph or telephone within this state, shall have power to acquire by purchase such real and other property as may be necessary for the construction, maintenance, and operation of its lines of telegraph or telephone, to hold and use the same, to lease or otherwise dispose of any part or parcel thereof, or sell the same when no longer necessary to its use.
Source: SDC 1939, § 52.1311 (3).
49-30-7. Powers of corporation--Construction along waters and highways.
Every corporation formed under the provisions of this chapter, and every corporation formed under the laws of any other state or territory or of the United States, owning or operating lines of telegraph or telephone within this state, shall have power to construct its lines of telegraph or telephone across, along, or upon any stream of water, watercourse, street, highway, toll or wagon road, plank road, turnpike, wharf, levee, river front, steamboat, or other public landing, or canal, which its line shall intersect or touch.
Source: SDC 1939, § 52.1311 (4).
49-30-8. Powers of corporation--Connection with preexisting lines--Expense of connection.
Every corporation formed under the provisions of this chapter, and every corporation formed under the laws of any other state or territory or of the United States, owning or operating lines of telegraph or telephone within this state, shall have power to connect its lines of telegraph or telephone with any lines of telegraph or telephone heretofore or hereafter constructed; provided that no corporation which shall have constructed its lines of telegraph or telephone at the point of intersection shall be required to alter or change the location of the same, or be required to bear any part of the expense of making and maintaining such connection.
Source: SDC 1939, § 52.1311 (5).
49-30-9. Powers of corporation--Transmission of messages.
Every corporation formed under the provisions of this chapter, and every corporation formed under the laws of any other state or territory or of the United States, owning or operating lines of telegraph or telephone within this state, shall have power to take and transmit messages over its lines of telegraph or telephone by power or force of electricity, and to receive compensation therefor, and to do all the business incident to telegraph or telephone corporations.
Source: SDC 1939, § 52.1311 (6).
49-30-10. Powers of corporation--Accessory facilities.
Every corporation formed under the provisions of this chapter, and every corporation formed under the laws of any other state or territory or of the United States, owning or operating lines of telegraph or telephone within this state, shall have power to erect and maintain all necessary and convenient buildings, fixtures, and machinery for the accommodation and use of its patrons, and for the carrying on of its business.
Source: SDC 1939, § 52.1311 (7).
49-30-11. Powers of corporation--Rules and regulations for transmission of messages.
Every corporation formed under the provisions of this chapter, and every corporation formed under the laws of any other state or territory or of the United States, owning or operating lines of telegraph or telephone within this state, shall have power to establish reasonable rules and regulations concerning the time and manner in which messages shall be transmitted, and the compensation to be paid therefor.
Source: SDC 1939, § 52.1311 (8).
49-30-12. Powers of corporation--Condemnation of real property.
Every corporation formed under the provisions of this chapter, and every corporation formed under the laws of any other state or territory or of the United States, owning or operating lines of telegraph or telephone within this state, shall have power to acquire such real property as may be necessary for the construction and maintenance of its lines of telegraph or telephone by condemnation, as prescribed by law and the rules of practice and procedure pertaining to condemnation proceedings.
Source: SDC 1939, § 52.1311 (9).
49-30-13. Board of directors--Election--Terms of office--Director as stockholder.
There shall be a board of not less than three nor more than thirteen directors of every corporation organized under this chapter to manage its affairs, who shall be elected at the time, in the manner and for the terms as are prescribed by its bylaws, and shall hold their offices until the respective successors are chosen. No person may be a director unless the person is a stockholder, owning stock absolutely in the person's own name or as a trustee or personal representative, and qualified to vote at the election at which the person is chosen.
Source: SDC 1939, § 52.1305; SL 1943, ch 178; SL 1955, ch 227, § 1; SL 2018, ch 265, § 2.
49-30-14. Voting for directors--Filling vacancies.
In the election of directors each stockholder shall be entitled to one vote, either in person or by proxy, for every share of stock owned by him for thirty days next preceding such election. Vacancies shall be filled in the manner prescribed in the bylaws. Inspectors of the first election of directors shall be appointed by the board of directors named in the articles of incorporation, and thereafter as provided by the bylaws.
Source: SDC 1939, § 52.1305; SL 1943, ch 178; SL 1955, ch 227, § 1.
49-30-15. Meeting for election of directors--Notice of meeting--Waiver of notice.
If, for any reason, the election of directors shall not have been held at the time fixed therefor by law, the same may be held at any time thereafter on a notice of twenty days. Such election may be called by a majority of the directors or by the stockholders holding a majority of the stock; but at any meeting at which all the stockholders shall be present or be represented by attorney or proxy, it shall be lawful to waive notice and proceed to an election of directors.
Source: SDC 1939, § 52.1305; SL 1943, ch 178; SL 1955, ch 227, § 1.
49-30-16. Rural telephone companies--Inability to procure majority of stockholders at meeting--Powers of stockholders attending--Binding effect of actions taken.
In the case of rural telephone companies where it is no longer possible, by reasonable diligence, to procure the attendance in person or by proxy of the owners of the proper majority of the shares of all the subscribed capital stock as shown by the books of the company, or a proper majority of the members if there be no capital stock, by reason of death, removal from the state, or the whereabouts of a stockholder or member being unknown, a lesser number of stockholders or members may meet, elect a board of directors and transact any other business necessary to the proper conduct of the telephone company or association or vote on resolutions to reorganize or dissolve the corporation, sell the corporate assets and repeal or amend the articles of incorporation, with the same force and effect as though a proper majority of such stockholders and members were present; provided further, any action taken by a lesser number than a proper majority shall not be binding upon the company or association unless at least two-thirds of all stockholders or members whose respective post-office address is known are represented in person or by proxy. An affidavit by the secretary or treasurer of the company or association generally stating that all of the members or stockholders of the company or association cannot be found and further stating the number of members or stockholders whose whereabouts are known, will be proof of reasonable diligence for the purposes of this section and certify the authority of the lesser number of known stockholders or members to so vote.
Source: SDC 1939, § 52.1305 as added by SL 1943, ch 178; SL 1955, ch 227, § 1.
49-30-17. Notice to stockholders--Notice by mail.
In all cases, written notice of any meeting of stockholders held for the purpose described in § 49-30-16 shall be transmitted by mail by the secretary or manager to all stockholders or members at their last known post office addresses as shown by the books of the company or association at least ten days prior to the date fixed for such meeting. In case it is known that their current post office address is different from that shown by such books, such notice shall be sent to them at such last known address.
Source: SDC 1939, § 52.1305 as added by SL 1943, ch 178; SL 1955, ch 227, § 1.
49-30-18. Exhibition of corporate books and records.
At every election of directors the books and papers of a corporation organized under this chapter shall be exhibited to the meeting if a majority of the stockholders present require it.
Source: SDC 1939, § 52.1305; SL 1943, ch 178; SL 1955, ch 227, § 1.
49-30-19. Officers of corporation--Appointment by directors.
The directors shall appoint one of their number president; they also may appoint a vice-president, secretary, and treasurer, and such other officers and agents as shall be prescribed by the bylaws of such corporation.
Source: SDC 1939, § 52.1306.
49-30-20. Subscriptions for capital stock.
When the certificate of corporate existence is issued, the directors may, in case the whole of the capital stock shall not have been before subscribed, open books of subscription to fill up the capital stock at such time and after giving such notice as they may deem expedient, and may from time to time receive subscriptions until the capital stock is subscribed.
Source: SDC 1939, § 52.1304.
49-30-21. Failure to pay for stock--Collection by directors--Forfeiture of previous payments.
The directors may require any amounts unpaid upon the capital stock to be paid in such manner and in such installments as they deem proper. If any stockholder shall neglect to pay any installment as required by a resolution of the board, and the board shall have caused a notice in writing to be served on him personally or by depositing the same in the post office, postage paid, properly directed to him at the post office nearest his usual place of residence at least sixty days previous to the day on which such payment is required to be made, stating that he is required to make such payment at the time and place in such notice specified, and if he fails so to do his stock and all previous payments thereon will be forfeited for the use of the corporation, such board may declare such stock and previous payments forfeited, and they shall be forfeited accordingly to the use of the corporation, or such board may in any case enforce payment by action at law.
Source: SDC 1939, § 52.1307.
49-30-22. Increasing capital stock--Two-thirds vote required--Notice of meeting--Effective date of increase.
The capital stock of any corporation organized under this chapter may be increased to such amount as may by its stockholders be deemed necessary for the construction or operation of its lines of telegraph or telephone, by a vote of the owners of at least two-thirds of all its stock, in person or by proxy, at any annual meeting, or at any meeting called by its directors for that purpose by a notice in writing to each stockholder, to be served on him personally or by depositing the same in the post office, postage paid, properly directed to him at the post office, if known, nearest his usual place of residence, at least twenty days prior to such meeting. Such notice shall state the time and place of such meeting, its object, and the amount to which it is proposed to increase such capital stock. No vote in favor of such increase shall take effect until the proceedings of such meeting, showing the names of the stockholders voting therefor and the amount of stock owned by each, shall be entered upon the records of such corporation.
Source: SDC 1939, § 52.1309.
49-30-23. Transfer of stock--Stock deemed personal property.
The stock of every corporation organized under this chapter is deemed personal estate, and is transferable in the manner prescribed in its bylaws, subject to the provisions of §§ 57A-8-301 to 57A-8-307, inclusive, and §§ 57A-8-401 to 57A-8-407, inclusive, but no share is transferable until all previous calls have been fully paid in.
Source: SDC 1939, § 52.1308; SL 2021, ch 200, § 1.
49-30-24. Liability of stockholders--Stock held by fiduciary or as collateral security.
No person holding stock in any corporation organized under this chapter as personal representative, conservator, or trustee, and no person holding such stock as collateral security, is personally subject to any liability as stockholder of such corporation for any calls or installments on any part-paid stock thereof; but the person pledging such stock shall be considered as holding the same, and is liable as a stockholder accordingly; and the estate and funds in the hands of such personal representative, conservator, or trustee is liable in like manner and to the same extent as the testator, or intestate, ward, or person interested would have been if he had been living or competent to act, and held the same stock in his own name.
Source: SDC 1939, § 52.1310; SL 1993, ch 213, § 247; SL 1995, ch 167, § 188.
49-30-25. Meetings by teleconference.
Unless restricted by the articles of incorporation or bylaws, members of the board of directors or any committee designated by the board of directors may participate in a meeting of such board or committee by means of teleconference or similar communications equipment which allows all persons participating in the meeting to hear each other at the same time. Participation by a board or committee member in a teleconference constitutes presence in person at a meeting.
Source: SL 1997, ch 257, § 4.
CHAPTER 49-31
TELECOMMUNICATIONS SERVICES
49-31-1 Definitions.
49-31-1.1 "Noncompetitive service" defined.
49-31-1.2 "Emerging competitive service" defined.
49-31-1.3 "Fully competitive service" defined.
49-31-1.4 "Price regulation" defined--Determination of fair and reasonable price.
49-31-1.5 Unsolicited telephone call defined.
49-31-1.6 Established business relationship defined.
49-31-2 Applicability of statutes to telecommunications companies.
49-31-3 General supervision of telecommunications companies offering common carrier services by commission where not preempted--Filing application with commission--Demonstration of capabilities--Rules--Offering services without certificate of authority.
49-31-3.1 Approval required for discontinuance of noncompetitive telecommunications service.
49-31-3.2 Waiver, modification, etc., of rules and orders for fully competitive or emerging competitive service--Application for classification--Factors in determining classification--Time for approval or denial.
49-31-3.3 Investigation of telecommunications services--Ninety-day period--Reclassification--Burden of proof--Reclassification after 90 days.
49-31-3.4 Reclassification proceeding--Factors in determining reclassification--Burden of proof--Stay of price change--Penalties and costs for spurious petition.
49-31-4 Determination and approval of rates and prices by commission--Attribution of revenues, investments and expenses--Rules.
49-31-4.1 Hearings on price regulation--Petition--Adoption of price regulation for noncompetitive service.
49-31-4.2 Uniform prices for intrastate interexchange telecommunications services--Volume discounts--Taxes.
49-31-4.3 Accounts of other businesses--Consideration by commission--Disallowance of unreasonable profits--Burden of proof.
49-31-5 Promulgation of rules for conduct of business.
49-31-5.1 Telecommunications cooperatives, municipal telephone systems and independent telephone companies--Election to be regulated by commission.
49-31-5.2 Independent telecommunications companies--Petition by subscribers for election to be regulated by commission.
49-31-5.3 Independent telecommunications companies--Procedure for election by subscribers to be regulated by commission.
49-31-5.4 Independent telecommunications companies--"Subscribers" defined.
49-31-6 Valuation of company property.
49-31-7 Improvement of business and equipment--Notice to company from commission.
49-31-7.1 Powers and duties of commission.
49-31-7.2 Liability for damages unaffected.
49-31-7.3 Court order to testify or produce records--Violation as contempt.
49-31-7.4 Obstruction of commission--Civil fine.
49-31-8 49-31-8, 49-31-9. Repealed by SL 1987, ch 345, § 93.
49-31-10 Delivery of messages to persons intended--Care required.
49-31-11 Discrimination prohibited--Civil fine.
49-31-12 Commission to make rate or price schedule--Different rates or prices for different companies or services--Revision of rates--Notice to companies.
49-31-12.1 Tariff as prima facie evidence of reasonableness--Commission certified as true copy.
49-31-12.2 Duties of regulated companies concerning publication and filing of rates or prices.
49-31-12.3 Failure to file tariffs and agreements--Mandamus.
49-31-12.4 Filing of new or changed tariff--Procedures for commission.
49-31-12.5 Filing of new schedule affecting emerging competitive service--Notice and hearing--Suspension or disapproval of price or practice.
49-31-12.6 Deposits into regulatory assessment fee fund.
49-31-12.7 Tariffs for telecommunications services other than emerging and noncompetitive services prohibited.
49-31-12.8 Availability of telecommunications services information--Notification of adverse change in rates, terms, or conditions.
49-31-13 49-31-13. Repealed by SL 1988, ch 375, § 26.
49-31-14 49-31-14. Repealed by SL 1987, ch 345, § 93.
49-31-14.1 49-31-14.1. Repealed by SL 1992, ch 328, § 22.
49-31-15 Access to telecommunications facilities--Application to commission--Order requiring access--Apportionment of expenses.
49-31-16 49-31-16. Repealed by SL 1992, ch 328, § 24.
49-31-17 49-31-17. Repealed by SL 1998, ch 274, § 20.
49-31-18 Access provided to companies doing business in same vicinity--Discrimination prohibited.
49-31-19 Tariff of access charges--Approval by commission.
49-31-20 Merger, consolidation, or transfer of stock or other ownership interests--Notification.
49-31-21 49-31-21. Repealed by SL 1998, ch 274, § 22.
49-31-22 49-31-22 to 49-31-24. Transferred to § 49-31-21.
49-31-25 Disclosure of contents, refusal to send or forging receipt of message as misdemeanor--Judicially ordered disclosure excepted.
49-31-26 Disclosure of message without written permission of sender or addressee as misdemeanor--Judicial disclosure excepted.
49-31-27 49-31-27. Repealed by SL 1987, ch 345, § 93.
49-31-28 Party line and emergency calls--Definitions.
49-31-29 Intentional refusal to relinquish party line in emergency as misdemeanor.
49-31-29.1 "Communication device" and "emergency" defined.
49-31-29.2 Interference with emergency communication--Violation a misdemeanor.
49-31-30 Securing line by claiming nonexistent emergency as misdemeanor.
49-31-31 Contact by telephone or other device--Threatening, harassing, or misleading contacts--Penalty.
49-31-31.1 Electronic communication device defined.
49-31-31.2 Caller identification--Fictitious or misleading--Exceptions.
49-31-32 Obscene telephone calls--Failure to replace receiver--Prima facie evidence of unlawfulness.
49-31-32.1 Dial-a-porn communications prohibited--Violation as misdemeanor.
49-31-32.2 Liability of persons for illegal use of telephone or facility under their control--Violation as misdemeanor.
49-31-32.3 Each day of violation constitutes separate offense.
49-31-33 Place of commission of offense committed by telephone or other electronic communication device.
49-31-34 49-31-34. Repealed by SL 1983, ch 15, § 122.
49-31-35 Severability and saving clause respecting unlawful telephone calls.
49-31-36 Manufacture, possession or transfer of instrument for fraudulently obtaining telecommunications service as misdemeanor.
49-31-37 Obtaining telecommunications service without payment as theft.
49-31-38 Violation of provision of chapters 49-1A, 49-13, and 49-31 and of order, rule, or regulation concerning telecommunication company regulation--Civil fine.
49-31-38.1 Intentional violation of provision of chapters 49-1A, 49-13, and 49-31 and of order, rule, or regulation of commission--Civil fine.
49-31-38.2 Additional penalty for violations--Forfeiture of franchise--Foreign corporations.
49-31-38.3 Action by attorney general to forfeit franchise or enjoin transaction of business.
49-31-39 49-31-39, 49-31-40. Repealed by SL 1992, ch 328, §§ 32, 33.
49-31-41 Security on stay of order--Conditions.
49-31-42 Proceedings before circuit court on appeal--Priority.
49-31-43 49-31-43. Repealed by SL 1992, ch 328, § 35.
49-31-44 Creation of telecommunications investigation fund--Purposes of fund--Deposit by telecommunications company.
49-31-45 Payment of investigation and hearing expenses--Procedure for payment--Accounting of company's deposit--Notice and order as to amount to be returned.
49-31-46 Payment for participation in federal proceedings.
49-31-47 Communication devices and services provided to persons with disabilities.
49-31-48 Telecommunication or communication device for individuals with disabilities--Dual party relay system.
49-31-49 Telecommunication or communication device remains property of state for three years.
49-31-50 Telecommunication funds for persons with hearing and other disabilities--Continuous appropriation.
49-31-50.1 Use of funds appropriated pursuant to § 49-31-50.
49-31-50.2 Rules relating to cochlear implants.
49-31-50.3 Approval of vouchers--Warrants.
49-31-51 Access fee imposed on local exchange service lines, cellular telephones and radio pager devices--Report of fee on monthly bills--Report on and remission of fees--Disposition of funds collected.
49-31-51.1 Promulgation of rules to administer access fee.
49-31-52 Liability for uncollected fees.
49-31-53 Annual review of access fee--Report to legislature.
49-31-54 Administrative cost for collection of fee.
49-31-55 Sources of funds in addition to access fees.
49-31-56 Method of payment of expenditures.
49-31-56.1 Promulgation of rules regarding telecommunications and communication services program.
49-31-57 Penalty for pleading filed for improper purpose--Sanction by commission.
49-31-58 Alternative methods of assigning costs for certain services.
49-31-59 Procedures for approving sale of telecommunications exchanges.
49-31-59.1 Legislative intent--Joint provisioning and revenue-pooling arrangements--Commission review and approval--Exemptions--Construction.
49-31-60 Telecommunications infrastructure--Legislative intent.
49-31-61 Public Communications Network Infrastructure--Composition.
49-31-62 49-31-62 to 49-31-68. Repealed by SL 1999, ch 224, §§ 3 to 9.
49-31-69 Certificate of authority for construction of telecommunications facility--Extension outside local exchange service area application--Amended certificate.
49-31-70 Application for certificate of authority--Notice.
49-31-71 Certificate of authority--Notice and hearing.
49-31-72 Certificate of authority--Time limit for decision.
49-31-73 Rural service areas--Services--Waiver.
49-31-74 Certificate of authority--Retroactive application--Alterations or additions.
49-31-75 Certificate of authority--Commission approval--Violations.
49-31-76 Commission to adopt rules addressing competitive provisions.
49-31-77 Commission may promulgate rules establishing service quality standards.
49-31-78 Commission shall designate eligible telecommunications carrier for service area--Right to relinquish designation.
49-31-79 Requirements of rural telephone company.
49-31-80 Suspension or modification to carrier with small service area.
49-31-81 Carrier to provide services to competitive telecommunications services provider.
49-31-82 Certain resale restrictions permitted.
49-31-83 Telecommunications companies may form associations--Policy restrictions.
49-31-84 Telecommunication companies may grant incentives to meet competition.
49-31-85 Commission to establish quality of service standards.
49-31-86 Restrictions on price changes for local exchange service--Exemption for promotions.
49-31-86.1 Limitation on promotions.
49-31-86.2 Exemption of § 49-31-86 to take effect December 31, 2000 for certain carriers.
49-31-87 Dialing parity to be implemented.
49-31-88 Companies not exempt from state or federal law.
49-31-89 Telecommunications company, services or product not to be changed without subscriber authorization--Evidence of authorization--Commission authorized to promulgate rules--Scope of rules.
49-31-90 Third-party verification--Requirements.
49-31-91 Criteria to be met by third-party verification company.
49-31-92 Separate authorization required for each service.
49-31-93 Subscriber not liable for unauthorized change of carrier, products or services--Company to compensate subscriber.
49-31-94 Penalties for violation--Disposition of fines collected.
49-31-95 Commission authorized to investigate complaints.
49-31-96 Costs of commission proceedings may be assessed against company--Objection.
49-31-97 "Subscriber" defined.
49-31-98 Agencies to establish cost recovery mechanism for certain mandated services--Exemption.
49-31-99 Requirements for telephone solicitors making unsolicited calls.
49-31-100 Operation of and subscription to register--Fees.
49-31-101 State "do-not-call" register.
49-31-102 Copy of register required for telephone solicitors making unsolicited calls.
49-31-103 Commission may use national "do-not-call" registry.
49-31-104 Telephone solicitation account established.
49-31-105 Annual fee for unsolicited calls by telephone solicitors.
49-31-106 Commission may use gross receipts tax fund for implementation--Funds to be returned after register implemented.
49-31-107 Telecommunications companies to notify customers of certain provisions.
49-31-108 Telephone solicitation--Violations--Civil penalty.
49-31-109 Definitions.
49-31-110 Local telecommunications traffic signaling information required to be provided by originating carrier to terminating carrier to assess charges.
49-31-111 Nonlocal telecommunications traffic signaling information required to be provided by originating carrier to terminating carrier to assess charges.
49-31-112 Transiting carrier required to deliver signaling information with telecommunications traffic--Liability for failure to deliver.
49-31-113 Transit traffic or billing records to be provided by transiting carrier.
49-31-114 Complaint procedure--Provisional remedies.
49-31-115 Promulgation of rules.
49-31-116 Required notice to subscribers of automatic renewal dates in certain telecommunications contracts.
49-31-117 Commission disbursement of certain bond or other proceeds to affected customers--Interest.
49-31-118 Wireless telephone number information in wireless directory assistance service database--Authorization for inclusion or sale.
49-31-119 Charge for exclusion of number from wireless directory assistance service database prohibited.
49-31-120 Definitions.
49-31-121 Obtaining confidential communications records without authorization from customer as misdemeanor.
49-31-122 Selling confidential communications records without authorization from customer as felony.
49-31-123 Law enforcement permitted to obtain confidential communications records pursuant to subpoena or court order.
49-31-124 Communications provider permitted to obtain confidential communications records through agents.
49-31-125 Communications provider permitted to obtain confidential communications records in connection with sale of business or migration of customer.
49-31-126 Civil action for violation--Double damages, costs, and attorney's fees.
49-31-1. Definitions.
Terms used in this chapter mean:
(1) "Addressable," enabling users to connect and communicate with a specific party easily and securely on a dial-up, addressable basis;
(2) "Available," ensuring that network services are available if the user requires them, even at times of peak usage; designed to be a nonblocking network, minimizing network contention;
(3) "Broadband network," the broadband network extends the range of fully switched, addressable, robust transport services over the fiber network which increase in multiples of OC-1 (51.84 Mbps), including OC-3 (155.52 Mbps) and OC-12 (622.08 Mbps);
(4) "Centron and centron-like services," services which provide custom switching features which include distributive dial tone, select number screening, toll restriction and screening, nonattendant busy out, nonattend and call transfer, and select trunk hunting and screening;
(5) "Commission," the Public Utilities Commission;
(6) "Common carrier," anyone who offers telecommunications services to the public;
(7) "Eligible telecommunications carrier," a local exchange carrier designated by the commission pursuant to 47 U.S.C. § 214(e) as of January 1, 1998, as eligible to receive universal service support funding;
(8) "Feature rich," providing the specific features and functionality required by users' voice, data, video, graphics, imaging, and multimedia applications; functionally beyond mere transport;
(8A) "Financial institution," any financial institution as defined in 15 U.S.C. § 6827 as of January 1, 2003, including any financial institution affiliate that controls, is controlled by, or is under common control with the financial institution;
(9) "Incumbent local exchange carrier," a local exchange carrier, including successors and assigns, which was providing local exchange service within a defined service area in this state on or before February 8, 1996;
(10) "Interexchange telecommunications service," telecommunications service between points in two or more exchanges;
(11) "LATA," a local access and transport area;
(12) "Local exchange area," any geographic area established by a local exchange carrier as filed with or approved by the commission for the administration of local telecommunications service which may consist of one or more central offices or wire centers together with associated facilities used in furnishing telecommunications service in that area;
(13) "Local exchange service," the access to and transmission of two-way switched telecommunications service within a local exchange area;
(13.5) "Mobile telecommunications service," any commercially available interconnected mobile phone service that provides access to the public switched telephone network through mobile communications devices employing radio wave technology to transmit calls;
(14) "Narrowband network," a fully switched digital network covering the transport range from 0 to 144,000 bits per second (144 Kbps), offering two 64 Kbps information B (Bearer) channels and a 16 Kbps signaling D (Delta) channel;
(15) "New products and services," any new product or service introduced after July 1, 1988, which is not functionally required to provide local exchange service. Repackaging of any product or service which is fully competitive with any service regulated as emerging competitive or noncompetitive is not considered a new product or service;
(16) "Optional service," any limited or discretionary service offered by a telecommunications company which is not functionally required for the provision of noncompetitive services and which the customer has the option to purchase;
(17) "Private," ensuring confidentiality and integrity of network transport of messages without dependency on specialized customer premise security devices;
(18) "Rate of return regulation," the procedure used by the commission to approve the charge for a service which gives due consideration to the public need for adequate, efficient, and reasonable service and to the need of the public utility for revenues sufficient to enable it to meet its total current cost of furnishing such service, including taxes and interest, and including adequate provision for depreciation of its utility property used and necessary in rendering service to the public, and to earn a fair and reasonable return upon the value of its property;
(19) "Register," a list of names and telephone numbers of residential telephone subscribers who have properly enrolled to prevent unsolicited telephone calls;
(20) "Residential telephone subscriber," any person residing in the state who has residential telephone service, including cellular service, personal communications service, and wireless local loop service, primarily used for personal use;
(21) "Robust," easily and economically sustaining the rigors of growth and extensive public use;
(22) "Rural telephone company," any local exchange company as defined in 47 U.S.C. § 153(37) as of January 1, 1998;
(23) "Secure," physically precluding unwanted access to network and information;
(24) "Service area," a geographic area established by the commission for the purpose of determining universal service obligations and support mechanisms. For a rural telephone company, the service area is the company's study area or any other area designated jointly by the commission and the Federal Communications Commission pursuant to 47 U.S.C. § 214(e)(5) as of January 1, 1998;
(25) "Standard," supporting universal interfaces and networking standards and protocols of generally accepted standards setting bodies;
(26) "Switched," providing circuit, packet, or channel type switching, each suited to specific application requirements;
(27) "Switched access," any exchange access service purchased for the origination and termination of interexchange telecommunications services which includes central office switching and signaling, local loop facility, or local transport;
(28) "Telecommunications company," any person or municipal corporation owning, operating, reselling, managing, or controlling in whole or in part, any telecommunications line, system, or exchange in this state, directly or indirectly, for public use. For purposes of this definition the term, for public use, means for the use of the public in general or for a specific segment of the public, or which connects to the public in general or for a specific segment of the public, or which connects to the public switched network for access to any telecommunications service;
(29) "Telecommunications service," the transmission of signs, signals, writings, images, sounds, messages, data, or other information of any nature by wire, radio, lightwaves, electromagnetic means, or other similar means. It does not include the provision of terminal equipment used to originate or terminate such service, broadcast transmissions by radio, television, and satellite stations regulated by the Federal Communications Commission and one-way cable television service;
(30) "Telephone solicitation call," any call made to a South Dakota consumer by a telephone solicitor, originating from South Dakota or elsewhere, for the purpose of soliciting a sale of any consumer goods or services to the person called, for the purpose of soliciting an extension of credit for consumer goods or services to the person called, or for the purpose of obtaining information that may be used for the direct solicitation of a sale of consumer goods or services to the person called or an extension of credit for such purposes;
(31) "Telephone solicitor," any person or organization who individually or through salespersons, makes or causes to be made a telephone solicitation call. This term does not include any not-for-profit or charitable organization exempt from federal income taxation pursuant to section 501(c)(3) of the Internal Revenue Code of 1986 as of January 1, 2003, which makes telephone calls solely to solicit a charitable donation;
(32) Repealed by SL 2007, ch 266, § 3.
(33) "Wideband network," the wideband network extends the range of fully switched, digital, addressable information transport from the 144 Kbps to the DS3 rate of 44.736 Mbps, including the DS1 and DS2 rates of 1.544 Mbps and 6.312 Mbps, respectively.
(34) "Wireless telephone number information," the telephone number, electronic address, and any other identifying information by which a calling party may reach a subscriber of mobile telecommunications service, and that is assigned by a mobile telecommunications service provider to a subscriber, and includes the subscriber's name and address.
Source: SDC 1939, §§ 52.0201, 52.1301; SDCL § 49-3-1; SL 1979, ch 307, § 17; SL 1982, ch 329, § 1; SL 1987, ch 345, § 41; SL 1988, ch 375, § 1; SL 1997, ch 266, § 2; SL 1998, ch 274, §§ 1, 2, 3, 4; SL 1999, ch 224, § 1; SL 2003, ch 238, § 1; SL 2005, ch 243, § 1; SL 2007, ch 266, § 3.
49-31-1.1. "Noncompetitive service" defined.
For the purposes of this chapter, "noncompetitive service" is a monopoly service for which no competition exists or the regulation of which is necessary to insure affordable local exchange service. Such services include:
(1) Residential local exchange service;
(2) Business local exchange service;
(3) Agribusiness local exchange service;
(4) Emergency services;
(5) Public and semipublic coin telephone service; and
(6) All services not otherwise listed in §§ 49-31-1.2 and 49-31-1.3.
Source: SL 1988, ch 375, § 2.
49-31-1.2. "Emerging competitive service" defined.
For the purposes of this chapter, "emerging competitive service" is a service that satisfies the criteria of § 49-31-3.2 and which has alternative services available to over twenty percent of the company's customers for that service. Such services include:
(1) Inter-LATA message toll service and intra-LATA message toll service;
(2) Inter-LATA wide area telephone service and intra-LATA wide area telephone service; and
(3) New products and services not functionally required to provide local exchange service.
Source: SL 1988, ch 375, § 3.
49-31-1.3. "Fully competitive service" defined.
For the purposes of this chapter, "fully competitive service" is a service that satisfies the criteria of § 49-31-3.2 and which has alternative services available to over fifty percent of the company's customers for that service or which is of limited scope or so discretionary in nature that regulation is not warranted. Such services include:
(1) Cellular radio services;
(2) Centron and centron-like services;
(3) Billing and collections;
(4) Optional services;
(5) Private line and special access; and
(6) Premise cable and inside wire.
Source: SL 1988, ch 375, § 4.
49-31-1.4. "Price regulation" defined--Determination of fair and reasonable price.
For the purposes of this chapter, "price regulation" is the procedure used by the commission to approve the charge for an emerging or noncompetitive telecommunications service which is not based on rate of return regulation. In determining whether the price is fair and reasonable, the commission shall determine and consider the price of alternative services, the overall market for the service, the affordability of the price for the service in the market it is offered, and the impact of the price of the service on the commitment to preserve affordable universal service. In determining the price for an emerging competitive service, the commission shall also consider the actual cost of providing the service. In determining the price for a noncompetitive service, the commission shall also consider the fully allocated cost of providing the service.
Source: SL 1988, ch 375, § 6; SL 1992, ch 328, § 1.
49-31-1.5. Unsolicited telephone call defined.
For the purposes of this chapter, the term, unsolicited telephone call, means any telephone solicitation call other than a call made:
(1) In response to an express request of the person called;
(2) Primarily in connection with an existing debt or contract, payment or performance of which has not been completed at the time of such call; or
(3) To any person with whom the telephone solicitor, or any business or financial institution on whose behalf the telephone call is being made has an established business relationship.
Source: SL 2007, ch 266, § 1.
49-31-1.6. Established business relationship defined.
For purposes of § 49-31-1.5, an established business relationship means a prior or existing relationship:
(1) Formed by the person's purchase or transaction with the telephone solicitor, or any business or financial institution on whose behalf the call is made, within the eighteen months immediately preceding the date of the telephone call; or
(2) Formed on the basis of the person's inquiry or application regarding products or services offered by the telephone solicitor, or any business or financial institution on whose behalf the call is made, within the three months immediately preceding the date of the call.
The relationship must not have been previously terminated by either party.
Source: SL 2007, ch 266, § 2.
49-31-2. Applicability of statutes to telecommunications companies.
The provisions of chapters 49-7 to 49-13, inclusive, and this chapter apply to all telecommunications companies and to all telecommunications lines and facilities of any kind, character or description in use by any corporation, receiver, trustee, or other person operating a telecommunications company, whether owned or operated under contract, agreement, lease or otherwise.
Source: SDC 1939, §§ 52.0201, 52.1301; SDCL, § 49-3-3; SL 1979, ch 307, § 19; SL 1987, ch 345, § 42; SL 1992, ch 328, § 2.
49-31-3. General supervision of telecommunications companies offering common carrier services by commission where not preempted--Filing application with commission--Demonstration of capabilities--Rules--Offering services without certificate of authority as misdemeanor.
The commission has general supervision and control of all telecommunications companies offering common carrier services within the state to the extent such business is not otherwise regulated by federal law or regulation. The commission shall inquire into any complaints, unjust discrimination, neglect, or violation of the laws of the state governing such companies. The commission may exercise powers necessary to properly supervise and control such companies.
Each telecommunications company that plans to offer or provide interexchange telecommunications service shall file an application for a certificate of authority with the commission pursuant to this section. Telecommunications companies seeking to provide any local exchange service shall submit an application for certification by the commission pursuant to §§ 49-31-1 through 49-31-89. The commission shall have the exclusive authority to grant a certificate of authority. Each telecommunications company shall submit a two hundred fifty dollar application fee with its application which shall be deposited into the gross receipts tax fund established pursuant to § 49-1A-2. Unless an evidentiary hearing is required by the commission, the commission shall act on an application for a certificate of authority to provide interexchange telecommunications service within sixty days of receiving a complete application. If an evidentiary hearing is required, the commission shall act on the application within one hundred twenty days of receipt of a complete application. A telecommunications company has the burden to prove in its application that it has sufficient technical, financial and managerial capabilities to offer the telecommunications services described in its application before the commission may grant a certificate of authority. The commission may rule upon a telecommunications company's application for a certificate of authority with or without hearing.
Any certificate of authority granted by the commission may be suspended or revoked pursuant to chapter 1-26 for a willful violation of the laws of this state, a willful failure to comply with a rule or order of the commission, or other good cause. The commission shall, by rules promulgated pursuant to chapter 1-26, prescribe the necessary procedures to implement this section. A telecommunications company that had lawful authority immediately prior to July 1, 1998, to provide interexchange telecommunications services shall continue to have such authority. Any certificate of authority to provide such telecommunications service may not be sold, assigned, leased, or transferred without commission approval. The offering of such telecommunications services by a telecommunications company without a certificate of authority or inconsistent with this section is a Class 1 misdemeanor.
Source: SDC 1939, §§ 52.0202, 52.1302; SDCL, § 49-3-4; SL 1979, ch 307, § 20; SL 1987, ch 345, § 43; SL 1988, ch 375, § 7; SL 1992, ch 328, § 3; SL 1994, ch 352, § 9; SL 1998, ch 274, § 5; SL 1998, ch 275, § 1; SL 2005, ch 244, § 1.
49-31-3.1. Approval required for discontinuance of noncompetitive telecommunications service.
A telecommunications company may not discontinue any noncompetitive telecommunications service without the express approval of the commission. A telecommunications company need only notify the commission of the discontinuance of any emerging competitive telecommunications service.
Source: SL 1988, ch 375, § 8; SL 1992, ch 328, § 4.
49-31-3.2. Waiver, modification, etc., of rules and orders for fully competitive or emerging competitive service--Application for classification--Factors in determining classification--Time for approval or denial.
The commission, after notice and hearing, shall waive, eliminate or modify any of its rules or orders affecting telecommunications services if it finds that a telecommunications service is a fully competitive service or an emerging competitive service. A person, or the commission on its own motion, may apply to have an emerging competitive service of a telecommunications company classified as a fully competitive service or a noncompetitive service classified as an emerging competitive service or a fully competitive service. The application shall be filed with the commission and served on any other person designated by the commission. The application shall be in a form prescribed by the commission. The commission, in determining how a telecommunications service is to be classified, shall consider:
(1) The number and size of alternative providers of the service and the affiliation to other providers;
(2) The extent to which services are available from alternative providers in the relevant market;
(3) The ability of alternative providers to make functionally equivalent or substitute services readily available at competitive rates, terms, and conditions of service;
(4) The market share, the ability of the market to hold prices close to cost, and other economic measures of market power; and
(5) The impact on universal service.
The commission shall approve or deny any such application within ninety days after the filing of the application. However, the commission may, by order, defer the period within which it must act for one additional period of ninety days, upon a finding that the proceeding cannot be completed within ninety days and that the additional time period is necessary for the commission to adequately and completely fulfill its duty under this title. If the commission has not acted on any such application within the appropriate time period permitted, the application shall be deemed granted.
Source: SL 1988, ch 375, § 9; SL 1992, ch 328, § 5.
49-31-3.3. Investigation of telecommunications services--Ninety-day period--Reclassification--Burden of proof--Reclassification after 90 days.
The commission may, within ninety days after July 1, 1988, conclude an investigation into any or all of the telecommunications services listed in §§ 49-31-1.1, 49-31-1.2, and 49-31-1.3 to determine if any service is properly classified pursuant to the standards found in subdivisions 49-31-3.2(1) to (5), inclusive. The commission may, after notice and hearing, reclassify any service to conform the classification of the service to the evidence and the standards in § 49-31-3.2. The telecommunications company providing the service has the burden of proving the classification is appropriate. During this ninety-day period, any service subject to the investigation will remain under rate of return regulation. Upon expiration of the ninety-day period, reclassification of any service, even if hearings had commenced within the ninety days, will be pursuant to the provisions of § 49-31-3.4.
Source: SL 1988, ch 375, § 5.
49-31-3.4. Reclassification proceeding--Factors in determining reclassification--Burden of proof--Stay of price change--Penalties and costs for spurious petition.
The commission, on its own motion or upon petition, shall commence regulation or reclassify a telecommunications service previously classified by the Legislature or the commission as a fully competitive service or an emerging competitive service if, after hearing or investigation, the commission finds:
(1) That the market for that emerging competitive service does not satisfy the criteria of § 49-31-3.2 and does not have alternative telecommunications services available to over twenty percent of the telecommunications company's customers for that service; or
(2) That the market for that fully competitive service does not satisfy the criteria of § 49-31-3.2 and does not have alternative telecommunications services available to over fifty percent of the telecommunications company's customers for that service.
In any proceeding to reclassify a telecommunications service, the person initiating the petition has the burden of proving that the existing classification is inappropriate, except the telecommunications company providing the service has the burden of proving that the classification is appropriate if the proceeding is commenced by the commission on its own motion. Upon the filing of a petition under this section and upon application, the commission may enter an order staying a price change, for not more than thirty days, for the disputed service pending a hearing on the merits of the petition, for reasonable cause shown. If a petition under this section is found to be spurious or vexatious, the commission may assess reasonable penalties and costs against the petitioning party, which may include reasonable attorney fees. However, the penalties and costs may not be assessed against the commission.
Source: SL 1988, ch 375, § 10; SL 1992, ch 328, § 6.
49-31-4. Determination and approval of rates and prices by commission--Attribution of revenues, investments and expenses--Rules.
Any charge established for the provision of telecommunications services shall be fair and reasonable. The commission shall determine and approve individual rates to be charged by any telecommunications company for a noncompetitive service pursuant to § 49-31-1.4, if applicable, and pursuant to §§ 49-31-12, 49-31-12.2 and 49-31-12.4. Except as provided in § 49-31-4.1, the commission shall utilize rate of return regulation when determining the charge for a noncompetitive service.
The commission shall determine and approve individual prices to be charged by a telecommunications company for any emerging competitive service pursuant to §§ 49-31-1.4, 49-31-12, 49-31-12.2 and 49-31-12.5. However, there is no rate of return regulation of emerging competitive services and no rate of return or price regulation of fully competitive services.
The commission shall separate, assign and distribute a telecommunications company's revenues, investments, and expenses among all services offered. The commission shall, by rules promulgated pursuant to chapter 1-26, prescribe the methodologies by which a telecommunications company shall segregate its revenues, investments and expenses. The methodologies prescribed by the rules shall be in accord with federal and state law. No telecommunications company may use the revenues from emerging competitive services to subsidize fully competitive services or revenues from noncompetitive services to subsidize emerging competitive services or fully competitive services. Expenses and investment of fully competitive services may not be attributed to emerging competitive services or noncompetitive services and the expenses and investment of emerging competitive services may not be attributed to noncompetitive services.
Rates being charged by a telecommunications company on July 1, 1988, shall be deemed to be the fair, reasonable, and effective rates until changed or altered pursuant to this chapter.
Source: SDC 1939, § 52.1302; SL 1987, ch 345, § 44; SL 1988, ch 375, § 11; SL 1992, ch 328, § 7.
49-31-4.1. Hearings on price regulation--Petition--Adoption of price regulation for noncompetitive service.
The commission shall, on its own motion or upon petition, hold public hearings investigating methods of price regulation consistent with § 49-31-1.4 and chapter 1-26. Within thirty days of its receipt of a petition filed pursuant to this section, the commission shall issue a procedural schedule setting forth dates by which written direct testimony or data shall be filed and ordering the date for commencement of a hearing.
If the investigation indicates that pricing regulation is appropriate for any noncompetitive service because such regulation has a positive impact on universal service and is more reasonable and fair than rate of return regulation, the commission may adopt pricing regulation for any such noncompetitive service.
Source: SL 1988, ch 375, § 12; SL 1992, ch 328, § 8.
49-31-4.2. Uniform prices for intrastate interexchange telecommunications services--Volume discounts--Taxes.
A telecommunications company providing intrastate interexchange telecommunications services shall charge uniform prices on all routes where it offers the services. However, notwithstanding this section and § 49-31-11, a telecommunications company may offer or provide volume discounts and may pass through any state, municipal or local taxes in the specific geographic areas from which the taxes originate.
Source: SL 1988, ch 375, § 13; SL 1992, ch 328, § 9.
49-31-4.3. Accounts of other businesses--Consideration by commission--Disallowance of unreasonable profits--Burden of proof.
Each telecommunications company engaged directly or indirectly in any business other than that of providing telecommunications service shall keep and, if requested by the commission, render separately to the commission, in like manner and form the relevant accounts of all such other businesses. The provisions of this chapter apply to the books, accounts, papers and records of relevant transactions with such other businesses. All profits and losses of such other business may be considered by the commission as are relevant to the general fiscal condition of the telecommunications company. The commission, in determining the allowance for materials or services to be included in costs of operations for rate of return or price regulation for noncompetitive services, may disallow any unreasonable profit made in the sale of materials to or service supplied for any telecommunications company by any firm or corporation owned or controlled directly or indirectly by such company or any affiliate, subsidiary, parent company, associate or any corporation whose controlling stockholders are also controlling stockholders of such telecommunications company. The burden of proof shall be on the telecommunications company to prove that no unreasonable profit is involved.
Source: SL 1988, ch 375, § 14.
49-31-5. Promulgation of rules for conduct of business.
The commission may regulate the business of providing telecommunication service and may promulgate rules pursuant to chapter 1-26 concerning:
(1) Requirements for telecommunications companies to maintain and make available to the public and the commission records and utility tariffs;
(2) Requirements for telecommunications companies to provide information to customers regarding credit, deposits, services, refunds and billing rights;
(3) Requirements that telecommunications companies must follow regarding procedures for billing customers;
(4) Procedures and requirements for handling billing disputes, service interruptions, payment plans and refunds;
(5) Standards and procedures for telecommunications companies to follow to ensure nondiscriminatory credit policies;
(6) Procedures, requirements and record-keeping guidelines regarding deposit policies;
(7) Procedures, requirements and record-keeping guidelines regarding customer refunds;
(8) Policies for telecommunications companies to follow regarding refusal of telephone service to the public;
(9) Policies for telecommunications companies to follow regarding disconnection of customer service;
(10) Registration procedures, service requirements, billing practices and maximum service charges for alternative operator services in South Dakota;
(11) Procedures and requirements for classification and reclassification proceedings;
(12) Standards, procedures and requirements regarding the telecommunications utility investigation fund;
(13) Application and notice procedures for the construction of telecommunications facilities; and
(14) Requirements for filing and noticing tariff changes.
Source: SDC 1939, § 52.0260; SL 1986, ch 22, § 22; SL 1987, ch 345, § 45; SL 1990, ch 371, § 2; SL 1992, ch 328, § 10.
49-31-5.1. Telecommunications cooperatives, municipal telephone systems and independent telephone companies--Election to be regulated by commission.
Telecommunications cooperatives organized pursuant to chapters 47-15 to 47-20, inclusive, municipal telephone systems operated pursuant to chapter 9-41, and independent telephone companies serving less than fifty thousand local exchange subscribers are not subject to chapter 49-11, §§ 49-31-1.1 to 49-31-1.4, inclusive, 49-31-3.1 to 49-31-4.1, inclusive, 49-31-4.3, 49-31-5, and 49-31-6, 49-31-12 to 49-31-12.5, inclusive, and 49-31-44 to 49-31-46, inclusive.
However, any cooperative, municipality, or independent telecommunications company may elect to have its rates regulated by the commission and be subject to commission regulation for its emerging and noncompetitive telecommunications services. The election to be regulated shall be made by filing with the commission a certified copy of the resolution of the board of directors or the municipal governing body. Commission regulation shall become effective thirty days after receipt of the resolution by the commission.
Source: SL 1979, ch 314; SL 1980, ch 70, § 2; SL 1982, ch 329, § 2; SL 1987, ch 345, § 46; SL 1988, ch 375, § 27; SL 1992, ch 328, § 11; SL 1998, ch 274, § 19.
49-31-5.2. Independent telecommunications companies--Petition by subscribers for election to be regulated by commission.
An independent telecommunications company may be brought under commission regulation if no fewer than five percent of the subscribers, or twenty-five subscribers, whichever is the greater, petition the commission to hold an election of all subscribers of the company to return the company to commission regulation.
Source: SL 1982, ch 329, § 3; SL 1992, ch 328, § 12.
49-31-5.3. Independent telecommunications companies--Procedure for election by subscribers to be regulated by commission.
The ballot to be used in the election shall be approved by the independent telecommunications company and the commission. The commission shall mail ballots, at company cost, to the company's subscribers who shall return the ballots to the commission. The commission shall keep the ballots sealed until the date agreed upon by the commission and board of directors. On the date set, a commission representative and a representative of the company shall count the ballots. If a majority of the company's subscribers elect to become subject to regulation by the commission, the election shall be effective thirty days after the date the ballots are counted.
Source: SL 1982, ch 329, § 4; SL 1992, ch 328, § 13.
49-31-5.4. Independent telecommunications companies--"Subscribers" defined.
The term "subscribers" as used in §§ 49-31-5.2 and 49-31-5.3 means either the person in whose name the telecommunications service is registered or the spouse of the person unless the independent telecommunications company has been notified in writing to the contrary.
Source: SL 1982, ch 329, § 5; SL 1992, ch 328, § 14.
49-31-6. Valuation of company property.
The commission may make a physical valuation of all the property of any telecommunications company, to be taken when such valuation is necessary for the purpose of arriving at any determination in connection with the regulation of its business or the adjustment of its rates.
Source: SDC 1939, § 52.0269; SL 1987, ch 345, § 47.
49-31-7. Improvement of business and equipment--Notice to company from commission.
In addition to the regulatory powers and duties provided by chapters 49-1 to 49-13, inclusive, and this chapter, the commission may conduct any investigations that are necessary to protect the public interest. The commission may order such changes or improvements in telecommunications facilities, exchanges or networks as necessary for the improvement of telecommunications service and the convenience of the public. If, in the judgment of the commission, any repair upon telecommunications facilities, a change in its rates, a change in the mode of operating telecommunications facilities or conducting telecommunications company business is necessary, reasonable and expedient in order to promote the safety, convenience and accommodation of the public, the commission shall notify the telecommunications company immediately, and such telecommunications company shall change the mode of operating its facilities or conducting its business, or repair, renew or replace such facilities in such manner, of such material and within such time as the commission may order.
Source: SDC 1939, §§ 52.0202, 52.1318; SDCL, §§ 49-3-7, 49-3-8; SL 1979, ch 307, §§ 21, 22; SL 1987, ch 345, § 48; SL 1992, ch 328, § 15.
49-31-7.1. Powers and duties of commission.
The commission may:
(1) Examine and inspect the condition of each telecommunications company in this state and of its equipment, and the manner of its conduct and management with reference to the safety, accommodation and convenience of the public;
(2) Require any telecommunications company doing business in this state to install any facility necessary for the safety, convenience and accommodation of the public;
(3) Inquire into the management of the business of all telecommunications companies subject to the provisions of this chapter, and the commission shall keep informed as to the manner and method in which the same is conducted, and may obtain from such telecommunications companies full and complete information necessary to enable it to perform the duties and carry out the objects for which it was created;
(4) Require annual reports and such special reports which, in the opinion of the commission, are necessary or proper for its information;
(5) Prescribe the forms of any and all accounts, records and memoranda to be kept by telecommunications companies;
(6) Inspect all accounts, records and memoranda kept by telecommunications companies and may employ special agents or examiners who have authority, under the order of the commission, to examine any and all accounts, records and memoranda kept by any telecommunications company engaged in interstate commerce;
(7) Examine any of the books, papers or documents of any such telecommunications company and to examine under oath or otherwise any officer, director, agent or employee of any such telecommunications company; and
(8) Issue subpoenas to compel the attendance and testimony of witnesses and the production of all books, papers, tariffs, schedules, contracts, agreements and documents relating to any matter under investigation, and to that end may invoke the aid of any court of this state in requiring the attendance and testimony of witnesses and the production of books, papers and documents under the provisions of this section. The attendance of witnesses and the production of documents, books and papers may be required from any place in the state at any designated place of hearing.
Source: SDC 1939, §§ 52.0202 to 52.0205, 52.0256, 52.0259; SDCL, §§ 49-3-6, 49-3-10, 49-3-11, 49-3-12, 49-3-13, 49-3-16, 49-3-17, 49-3-19, 49-3-20; SL 1987, ch 345, § 49.
49-31-7.2. Liability for damages unaffected.
Nothing in § 49-31-7.1 may be construed to relieve any telecommunications company from its present responsibility or liability for damages to any person or property.
Source: SDC 1939, § 52.0202; SDCL, § 49-3-9; SL 1987, ch 345, § 50.
49-31-7.3. Court order to testify or produce records--Violation as contempt.
Upon certificate by any member of the commission stating that a telecommunications company or person subject to the provisions of this chapter has refused to obey a subpoena, rule, order or regulation of the commission, any court of this state, pursuant to chapter 21-34, shall issue an order requiring such telecommunications company or other person to appear before the commission and produce all books and papers, give evidence in relation to the matter in question or otherwise comply with the rule or order of the commission. A failure to obey the order of the court shall be punished by the court as contempt.
Source: SDC 1939, § 52.0203; SDCL, § 49-3-14; SL 1987, ch 345, § 51; SL 1992, ch 328, § 16.
49-31-7.4. Obstruction of commission--Civil fine.
No person may obstruct the commission or any member thereof in the performance of any of its duties or functions or refuse to give any information within its possession or to produce any record or evidence that may be required by the commission or member within the purview of its or his duties as such commission or member. Any person who violates this section may be punished by a civil fine not exceeding one thousand dollars.
Source: SDC 1939, §§ 52.0203, 52.9901; SDCL, § 49-3-15; SL 1983, ch 15, § 96; SL 1983, ch 331, § 7; SL 1987, ch 345, § 52.
49-31-10. Delivery of messages to persons intended--Care required.
Any telecommunications provider in this state shall use great care and diligence in the transmission and delivery of telecommunications services and shall deliver telecommunications messages to the persons for whom they are intended.
Source: SDC 1939, §§ 8.0701, 8.0702, 8.1102, 52.1314; SDCL, §§ 49-6-1, 49-6-2; SL 1983, ch 15, § 112; SL 1987, ch 345, § 53.
49-31-11. Discrimination prohibited--Civil fine.
No person or telecommunications company may unjustly or unreasonably discriminate between persons in providing telecommunications services or in the rate or price charged for those services. No telecommunications company may offer a rate or charge, demand, collect or receive from any person a greater or lesser compensation for any telecommunications service offered than it charges, demands, collects or receives from any other person for providing a like telecommunications service. No telecommunications company may make or give any unjust or unreasonable preference or advantage to any person, nor unjustly or unreasonably prejudice or disadvantage any person, in the provision of any telecommunications service. Notwithstanding any prohibitions in this section, upon application to the commission, any telecommunications company may after investigation by the commission, be authorized by the commission to charge special rates or to give certain preferences which are determined by the commission to be fair and reasonable.
Nothing in this section applies to volume discounts or to the provision of telecommunications services at reduced rates for the United States, this state, local governments or governmental subdivisions.
Whoever violates any of the provisions of this section is guilty of unjust discrimination and shall be punished by a civil fine not less than one thousand nor more than five thousand dollars for each violation. Nothing in this section may alter or eliminate any remedy otherwise available to an injured party, including an injured party's right to initiate a suit against the company guilty of discrimination pursuant to § 49-13-14.1.
Source: SDC 1939, §§ 52.1317, 52.9925; SL 1983, ch 15, § 113; SL 1983, ch 331, § 10; SL 1987, ch 345, § 54; SL 1988, ch 375, § 15; SL 1992, ch 328, § 36.
49-31-12. Commission to make rate or price schedule--Different rates or prices for different companies or services--Revision of rates--Notice to companies.
The commission shall make for each of the telecommunications companies doing business in this state a schedule of reasonable fares and rates or prices except for those telecommunications services which are fully competitive. The commission may determine and approve different rates or prices for different companies and for different services of any company. The commission shall:
(1) Change and revise such rates or prices as circumstances require;
(2) Serve upon each company at least ten days' notice of the time and place rates or prices will be determined, and provide an opportunity for any person, partnership, limited liability company, corporation, or company to be heard; and
(3) Give notice to the company of the rates or prices decided upon and the effective date of such rates or prices, and provide a printed copy of such rates or prices to the general public upon request.
Source: SDC 1939, §§ 52.0216, 52.1315; SDCL, §§ 49-10-1 to 49-10-3; SL 1979, ch 307, §§ 55, 56; SL 1987, ch 345, § 55; SL 1988, ch 375, § 16; SL 1994, ch 351, § 135.
49-31-12.1. Tariff as prima facie evidence of reasonableness--Commission certified as true copy.
Any tariff, or a certified copy, approved pursuant to § 49-31-1.4, 49-31-12, 49-31-12.2, 49-31-12.4, or 49-31-12.5, shall be received in evidence as an official tariff on file with the commission, without further proof. The commission shall certify that the tariff in question is a true copy of the original on file with the commission and that it is currently in effect. The tariff shall, in any suit brought against a company, constitute prima facie evidence that the rates or prices approved thereby are fair and reasonable.
Source: SDC 1939, § 52.0216; SDCL, §§ 49-10-4, 49-10-5; SL 1979, ch 307, § 57; SL 1987, ch 345, § 56; SL 1988, ch 375, § 17; SL 1992, ch 328, § 17.
49-31-12.2. Duties of regulated companies concerning publication and filing of rates or prices.
Any telecommunications company subject to this chapter for noncompetitive and emerging competitive telecommunications services shall:
(1) Print and keep for public inspection in a convenient and publicly accessible place, its tariff showing the rates or prices for telecommunications services offered by the company which are in force at the time;
(2) Not increase published rates or prices for noncompetitive telecommunications services except after thirty days' notice to the commission and to the public. The notice shall state the proposed increase and the proposed effective date of the increase. After thirty days' notice the increase may go into effect subject to suspension, refund or both, pursuant to § 49-31-12.4 or 49-31-12.5, whichever is applicable. A company need only notify the commission of any reduction in rates or prices for telecommunications services before the effective date of the reduction and publish the appropriately amended tariff and notice required in subdivision (1) of this section;
(3) Except as provided for in subdivision (2) of this section, not deviate from any of its current published rates; and
(4) Upon request of the commission, file with the commission copies of any contracts, agreements or arrangements with other companies that are affected by the provisions of this chapter.
Source: SDC 1939, § 52.0212; SDCL, §§ 49-10-10, 49-10-17; SL 1979, ch 307, §§ 61, 64; SL 1987, ch 345, § 57; SL 1988, ch 375, § 18; SL 1992, ch 328, § 18.
49-31-12.3. Failure to file tariffs and agreements--Mandamus.
If any telecommunications company subject to the provisions of this chapter neglects or refuses to file or publish its tariffs of rates or prices, and contracts and agreements relating thereto, the telecommunications company, pursuant to chapter 21-34, is subject to a writ of mandamus to be issued by any circuit court of the state in the judicial circuit where the principal office of the telecommunications company is situated or where the offense may be committed.
Source: SDC 1939, § 52.0212; SDCL, § 49-10-18; SL 1987, ch 345, § 58; SL 1988, ch 375, § 19; SL 1992, ch 328, § 19.
49-31-12.4. Filing of new or changed tariff--Procedures for commission.
If a telecommunications company files with the commission any tariff stating a new rate or price or any new practice affecting any noncompetitive telecommunications service, the commission:
(1) May upon a petition to intervene or on its own initiative, with or without answer or other formal pleading by the interested company or companies but upon reasonable notice, enter upon a hearing concerning the propriety or reasonableness of the rate, price or practice;
(2) Pending any hearing pursuant to subdivision (1) of this section, the commission may suspend the operation of the tariff and the use of the rate or practice upon order with notice to the company of the reasons therefor. The suspension may not last longer than one hundred twenty days beyond the proposed effective date of the rate or practice. However, the commission may extend the period an additional sixty days;
(3) During any hearing conducted pursuant to subdivision (1) of this section, receive whatever evidence, statements or arguments the parties may offer pertinent to the investigation. The burden is on the company to prove that the tariff is fair and reasonable;
(4) After any hearing pursuant to subdivision (1) of this section, determine a fair and reasonable rate or price, render a written decision specifically setting out the rate or price and prepare a record of its proceeding and findings; and
(5) If a rate has been suspended pursuant to subdivision (2) of this section and the commission has not issued an order at the expiration of one hundred eighty days after the proposed effective date of the rate or practice, the proposed change may go into effect at the end of such period. In the case of a proposed increased rate or price, the telecommunications company shall keep an accurate account of all amounts received by reason of the increase. The company shall specify by whom and on whose behalf the amounts are paid. Upon completion of the hearings and entry of a commission decision, the commission may require the telecommunications company to refund, with interest, to the persons in whose behalf such amounts were paid, the portion of the increased rates or prices found to be unfair or unreasonable.
Source: SDC 1939, §§ 52.0217 to 52.0219; SDCL, §§ 49-10-26, 49-10-27, 49-10-33 to 49-10-35; SL 1979, ch 307, §§ 67 to 69; SL 1980, ch 322, § 120; SL 1982, ch 326; SL 1987, ch 345, § 59; SL 1988, ch 375, § 20; SL 1992, ch 328, § 20.
49-31-12.5. Filing of new schedule affecting emerging competitive service--Notice and hearing--Suspension or disapproval of price or practice.
If a telecommunications company files with the commission any tariff stating a new price or a change in price or practice affecting any emerging competitive telecommunications service, the commission:
(1) Shall permit any proposed change in price or practice to be effective upon twenty days' notice to the commission and the customers affected by the change;
(2) May, upon receiving a petition to intervene or upon its own motion, conduct a hearing to determine whether any new price or change in price or practice is fair and reasonable. Any petition to intervene or motion shall be filed or made within twenty days after the filing of the price or practice. The burden of proof is on the company to show that any new price or change in price or practice is fair and reasonable. Any hearing shall be completed and any order of the commission shall be issued within one hundred twenty days after the effective date of the tariff filed;
(3) May, if the petition to intervene or motion alleges improper cross subsidization in violation of § 49-31-4 or unjust or unreasonable discrimination pursuant to § 49-31-11, suspend the effective date of any new price or a change in price or practice, if the commission determines that any remedial order of the commission pursuant to chapter 49-13 will not adequately protect a party from irreparable harm. Any suspension may not exceed thirty days following the effective date of the tariff filed; and
(4) Shall, after notice and hearing, disapprove any price or practice found to be unfair and unreasonable and may order a refund with interest of any portion of the change found to be unfair and unreasonable. During any proceedings under this section, a telecommunications company shall keep accurate records of the amounts collected as a result of the increased price in the event of a refund at the conclusion of all proceedings.
Source: SL 1988, ch 375, § 21; SL 1992, ch 328, § 21.
49-31-12.6. Deposits into regulatory assessment fee fund.
The Public Utilities Commission may require a telecommunications company as defined in § 49-31-1 to make a deposit when it files for approval of a general change in rates or prices for any noncompetitive or emerging competitive telecommunications service. The commission may require a telecommunications company to deposit up to one hundred thousand dollars in the South Dakota Public Utilities Commission Regulatory Assessment Fee fund, the amount to be designated by commission order.
Source: SL 1994, ch 352, § 5A; SL 2021, ch 200, § 7.
49-31-12.7. Tariffs for telecommunications services other than emerging and noncompetitive services prohibited.
Unless exempted from filing by § 49-31-5.1, a telecommunications company shall file tariffs only for emerging and noncompetitive telecommunications services. No other telecommunications services may be tariffed.
Source: SL 2007, ch 267, § 1.
49-31-12.8. Availability of telecommunications services information--Notification of adverse change in rates, terms, or conditions.
A telecommunications company shall make available to any person, in at least one location, during regular business hours, information concerning its current rates, terms, and conditions for all of its telecommunications services. The information shall be made available in an easy to understand format and in a timely manner. Following an inquiry or complaint from a person concerning a rate, term, or condition for a telecommunications service, a telecommunications company shall specify that such information is available and the manner in which the person may obtain the information. A telecommunications company shall notify a customer of any materially adverse change to any rate, term, or condition of any telecommunications service being provided to the customer. The notification shall be made at least thirty days in advance of the change.
Source: SL 2007, ch 267, § 2.
49-31-15. Access to telecommunications facilities--Application to commission--Order requiring access--Apportionment of expenses.
The commission may compel access to any telecommunications facilities in this state. Any telecommunications company desiring access to any other company's facilities shall, if access is refused, make an application to the commission. Upon receipt of the application, the commission shall ascertain the facts in the case. If in its judgment the public service demands the access and the facilities of the applicant are in proper condition, the commission may order the access upon such terms and conditions that are found to be in the public interest and apportion the expense of the access.
Source: SDC 1939, § 52.1316; SL 1947, ch 235; SL 1987, ch 345, § 62; SL 1992, ch 328, § 23.
49-31-18. Access provided to companies doing business in same vicinity--Discrimination prohibited.
Every telecommunications company shall provide access for any other telecommunications company doing business in the same vicinity that makes application therefor and shall afford all reasonable and proper facilities for such access, for reasonable compensation and without discrimination, and under rules the commission may prescribe. To provide access facilities at reasonable rates and to enhance and preserve universal service, the commission may establish methods designed to determine and implement fair and reasonable access rates by rules promulgated pursuant to chapter 1-26.
Source: SDC 1939, § 52.1316; SL 1947, ch 235; SL 1987, ch 345, § 65; SL 1988, ch 375, § 23; SL 1992, ch 328, § 26.
49-31-19. Tariff of access charges--Approval by commission.
Access charges for switching and transporting telecommunications services between facilities shall be published in the tariff filed by the telecommunications company providing the access.
Notwithstanding any exemption granted under § 49-31-5.1, any telecommunications company providing telecommunications access services which are classified as emerging or noncompetitive shall file its access tariffs with the commission for approval pursuant to § 49-31-12.4 or 49-31-12.5, as applicable.
Source: SDC 1939, § 52.1316; SL 1947, ch 235; SL 1987, ch 345, § 66; SL 1992, ch 328, § 27.
49-31-20. Merger, consolidation, or transfer of stock or other ownership interests--Notification.
Any telecommunications company that holds a certificate of authority to operate in this state shall notify the commission of any consolidation or merger or transfer of stock or other ownership interests that will result in a different person then owning more than fifty percent of the company's stock or ownership interests.
Source: SDC 1939, § 52.1312; SL 1951, ch 259; SL 1987, ch 345, § 67; SL 1988, ch 375, § 24; SL 1992, ch 328, § 28; SL 1998, ch 274, § 21; SL 2005, ch 245, § 1.
49-31-25. Disclosure of contents, refusal to send or forging receipt of message as misdemeanor--Judicially ordered disclosure excepted.
It is a Class 2 misdemeanor for any person connected in any capacity with a telecommunications company, with the intent to injure, deceive or defraud the sender or intended receiver thereof, or the company or provider, or to benefit himself or any other person, to:
(1) Intentionally divulge the contents or the nature of a private communication entrusted to him for transmission or delivery;
(2) Refuse or neglect to transmit or deliver the private communication; or
(3) Intentionally forge the name of the intended receiver to the private communication.
The provisions of this section do not apply to any person who divulges the contents of a private communication upon the order of a circuit court judge.
Source: SDC 1939, §§ 52.1319, 52.9926; SL 1983, ch 15, § 116; SL 1987, ch 345, § 69.
49-31-26. Disclosure of message without written permission of sender or addressee as misdemeanor--Judicial disclosure excepted.
Any person not connected with a telecommunications company, who discloses the contents of a private communication addressed to another person, in the course of transmission or in any other manner, without the written permission of the sender of the communication, or of the person to whom the communication is addressed, except upon order of a circuit court judge, is guilty of a Class 2 misdemeanor.
Source: SDC 1939, § 13.4511; SL 1983, ch 15, § 117; SL 1987, ch 345, § 70.
49-31-28. Party line and emergency calls--Definitions.
For the purposes of §§ 49-31-29 and 49-31-30 the following terms have the meanings ascribed to them as follows:
(1) "Party line" means a subscribers' line telephone circuit, consisting of two or more main telephone stations connected therewith, each station with a distinctive ring or telephone number;
(2) "Emergency" means a situation in which property or human life are in jeopardy, and the prompt summoning of aid is essential.
Source: SL 1959, ch 49, § 1; SDC Supp 1960, § 13.1629.
49-31-29. Intentional refusal to relinquish party line in emergency as misdemeanor.
Any person who intentionally refuses to immediately relinquish a party line when informed that such line is needed for an emergency call actually existing as defined in subdivision 49-31-28(2), to a fire department, to a law enforcement officer or department, for medical aid or for ambulance service, is guilty of a Class 2 misdemeanor.
Source: SL 1959, ch 49, § 2; SDC Supp 1960, § 13.1628; SL 1983, ch 15, § 119.
49-31-29.1. "Communication device" and "emergency" defined.
Terms used in §§ 49-31-29.1 and 49-31-29.2 mean:
(1) "Communication device," any device, including a telephone, cellular telephone, computer, or radio which may be used in an attempt to summon law enforcement, fire department, medical, or other emergency personnel;
(2) "Emergency," any situation in which human health or safety is in imminent danger.
Source: SL 2002, ch 214, § 1.
49-31-29.2. Interference with emergency communication--Violation a misdemeanor.
If a person is attempting to summon aid to an emergency or has communicated a desire to summon aid to an emergency, no person may prohibit or interrupt, or attempt to prohibit or interrupt, another person's use of a communication device by either of the following:
(1) Using or threatening to use physical force, intimidation, interference, or any other form of violence; or
(2) Destroying, disabling, or damaging a communication device.
A violation of this section is a Class 1 misdemeanor.
Source: SL 2002, ch 214, § 2.
49-31-30. Securing line by claiming nonexistent emergency as misdemeanor.
Any person who obtains the use of a party line by falsely stating that the line is needed for an emergency is guilty of a Class 2 misdemeanor.
Source: SL 1959, ch 49, § 3; SDC Supp 1960, § 13.1630; SL 1983, ch 15, § 120.
49-31-31. Contact by telephone or other device--Threatening, harassing, or misleading contacts--Penalty.
It is a Class 1 misdemeanor for a person to use a telephone or other electronic communication device for any of the following purposes:
(1) To contact another person with intent to terrorize, intimidate, threaten, harass, or annoy such person by using obscene or lewd language or by suggesting a lewd or lascivious act;
(2) To contact another person with intent to threaten to inflict physical harm or injury to any person or property;
(3) To contact another person with intent to extort money or other things of value;
(4) To contact another person with intent to disturb that person by repeated anonymous telephone calls or intentionally failing to replace the receiver or disengage the telephone connection; or
(5) Except as allowed in § 49-31-31.2, to contact or to attempt to contact another person and, in so doing, intentionally cause to be displayed as caller identification, a fictitious or misleading name or telephone number:
(a) To defraud, cause harm, or wrongfully obtain anything of value from another person; or
(b) Of another person who has not granted the person the right to display that other person's name or phone number, as applicable.
It is a Class 1 misdemeanor for a person to knowingly permit a telephone or other electronic communication device under his or her control to be used for a purpose prohibited by this section.
Source: SL 1967, ch 30, § 1; SL 1983, ch 15, § 121; SL 2008, ch 240, § 1; SL 2011, ch 206, § 1; SL 2022, ch 170, § 1.
49-31-31.1. Electronic communication device defined.
For the purposes of §§ 49-31-31 and 49-31-33, an electronic communication device is any electronic device capable of transmitting signs, signals, writing, images, sounds, messages, data, or other information by wire, radio, light waves, electromagnetic means, or other similar means, including telephones, cellular phones, and computers.
Source: SL 2011, ch 206, § 3.
49-31-31.2. Caller identification--Fictitious or misleading--Exceptions.
The provisions of subdivision 49-31-31(5) do not apply to:
(1) An authorized activity of a law enforcement agency;
(2) Any investigative, protective, or intelligence activity of a law enforcement agency of the United States, this state or its political subdivisions, or another state or its political subdivisions; or an intelligence agency of the United States;
(3) A protective services or domestic violence shelter or facility;
(4) A telecommunications company in:
(a) Blocking or restricting the name or phone number from being displayed by caller identification equipment or devices; or
(b) Displaying caller identification data sent to the company from the caller; or
(5) Any activity pursuant to a court order that specifically authorizes the use of caller identification manipulation.
Source: SL 2022, ch 170, § 2.
49-31-32. Obscene telephone calls--Failure to replace receiver--Prima facie evidence of unlawfulness.
The use of obscene or lewd language or the making of a threat or lewd suggestion or the failure to replace the telephone receiver as set forth in § 49-31-31 shall be prima facie evidence of the intent to terrorize, intimidate, threaten, harass, annoy or disturb another person.
Source: SL 1967, ch 30, § 2.
49-31-32.1. Dial-a-porn communications prohibited--Violation as misdemeanor.
It is unlawful for any person, for consideration, by means of a telephone communication for commercial purposes, to make directly or by means of an electronic recording device, any comment, request, suggestion or proposal which is obscene. Any person who makes any such comment, request, suggestion or proposal is subject to prosecution under this section regardless of whether the person placed or initiated the telephone call. A violation of this section is a Class 1 misdemeanor.
Source: SL 1989, ch 196, § 1.
49-31-32.2. Liability of persons for illegal use of telephone or facility under their control--Violation as misdemeanor.
It is unlawful for any telephone subscriber or individual to permit knowingly any telephone or telephone facility connected to a local exchange telephone under the telephone subscriber's or the individual's control to be used for any purpose prohibited by §§ 49-31-32.1 to 49-31-32.3, inclusive. A violation of this section is a Class 1 misdemeanor.
Source: SL 1989, ch 196, § 2.
49-31-32.3. Each day of violation constitutes separate offense.
For the purposes of §§ 49-31-32.1 to 49-31-32.3, inclusive, each day of a violation constitutes a separate offense.
Source: SL 1989, ch 196, § 3.
49-31-33. Place of commission of offense committed by telephone or other electronic communication device.
Any offense committed by use of a telephone or other electronic communication device as set forth in § 49-31-31 is considered to have been committed at either the place where the telecommunications message or electronic communication originated or at the place where the telecommunications message or electronic communication was received.
Source: SL 1967, ch 30, § 3; SL 1987, ch 345, § 71; SL 2011, ch 206, § 2.
49-31-35. Severability and saving clause respecting unlawful telephone calls.
If any provision of §§ 49-31-31 to 49-31-33, inclusive, is declared unconstitutional or the applicability thereof to any person or circumstance is held invalid, the constitutionality of the remainder of said sections and applicability thereof to other persons and circumstances shall not be affected thereby, and to this end, the provisions of said sections are hereby declared severable.
Source: SL 1967, ch 30, § 5.
49-31-36. Manufacture, possession or transfer of instrument for fraudulently obtaining telecommunications service as misdemeanor.
Any person:
(1) Who makes or possesses an instrument, apparatus, equipment or device designed, adapted or which can be used to obtain telecommunications service fraudulently or to conceal from the supplier of telecommunications service or from a lawful authority the existence or place of origin or of destination of a telecommunication; or
(2) Who sells, gives or otherwise transfers to another, or offers or advertises for sale, an instrument, apparatus, equipment or device described above, or plans or instructions for making or assembling the same; under circumstances evincing an intent to use or employ the instrument, apparatus, equipment or device, or to allow the same to be used or employed, for a purpose described above, or knowing or having reason to believe that the same is intended to be so used, or that the aforesaid plans or instructions are intended to be used for making or assembling such instrument, apparatus, equipment or device,
is guilty of a Class 2 misdemeanor.
Source: SL 1965, ch 225; SL 1983, ch 15, § 123.
49-31-37. Obtaining telecommunications service without payment as theft.
Any person who obtains telecommunications service by the use of a false, revoked, counterfeit or nonexistent credit card, or who obtains telecommunications service by charging the price for such service to a false or nonexistent telephone number or to an existing telephone number without the authority of the holder thereof, or who, through the use of any scheme or device, obtains the transmission of a communication without payment of the lawful charges is guilty of theft.
Source: SDC 1939, § 131.1832 as enacted by SL 1959, ch 38; SL 1969, ch 31; SL 1973, ch 285; SL 1983, ch 15, § 124; SL 1987, ch 345, § 72.
49-31-38. Violation of provision of chapters 49-1A, 49-13, and 49-31 and of order, rule, or regulation concerning telecommunication company regulation--Civil fine.
Any person who violates, neglects, fails, or refuses to comply with any of the provisions of chapters 49-1A, 49-13, and this chapter, not otherwise specifically penalized in those chapters, or who violates, neglects, fails, or refuses to comply with any lawful order, rule, or regulation of the commission in connection with the regulation of telecommunications companies, is punishable, after notice and opportunity for hearing, by a civil fine of not less than two hundred nor more than one thousand dollars for each offense.
Source: SDC 1939, § 52.9927; SL 1983, ch 15, § 125; SL 1983, ch 331, § 11; SL 1987, ch 345, § 73; SL 2004, ch 283, § 1.
49-31-38.1. Intentional violation of provision of chapters 49-1A, 49-13, and 49-31 and of order, rule, or regulation of commission--Civil fine.
Except as otherwise specifically provided, any person who intentionally does or causes to be done, or intentionally permits or omits to be done, any act, matter or thing prohibited, required, or declared to be unlawful in chapters 49-1A, 49-13, and this chapter, or intentionally violates, or refuses to comply with any lawful order, rule, or regulation of the commission, is punishable, after notice and opportunity for hearing, by a civil fine of not less than five hundred nor more than five thousand dollars for each offense.
Source: SDC 1939, § 52.9909; SDCL, § 49-3-29; SL 1983, ch. 15, § 97; SL 1983, ch 331, § 8; SL 1987, ch 345, § 74; SL 1992, ch 328, § 30; SL 2004, ch 283, § 2.
49-31-38.2. Additional penalty for violations--Forfeiture of franchise--Foreign corporations.
In addition to any penalty imposed or remedy provided in chapters 49-7 to 49-13, inclusive, and this chapter, if any telecommunications company willfully continues to neglect or refuse to comply with the provisions of those chapters, or with any reasonable order or regulation of the commission, such neglect or refusal shall cause a forfeiture of the franchise of the corporation, if the corporation is a domestic corporation. If the corporation is a foreign corporation, such neglect or refusal shall cause a forfeiture of all rights and privileges to transact its business within this state.
Source: SDC 1939, § 52.0254; SDCL, § 49-3-25; SL 1987, ch 345, § 75; SL 1992, ch 328, § 31.
49-31-38.3. Action by attorney general to forfeit franchise or enjoin transaction of business.
The attorney general shall commence an action in any court of competent jurisdiction in this state, or against any telecommunications company for the purpose of having its corporate franchise forfeited, or for the purpose of having it perpetually enjoined from transacting any business within this state, when the commission reports that any telecommunications company has violated the provisions of § 49-31-38.2.
Source: SDC 1939, § 52.0255; SDCL, § 49-3-26; SL 1987, ch 345, § 76.
49-31-41. Security on stay of order--Conditions.
Notwithstanding the provisions of § 1-26-32, if an order of the commission is stayed or suspended, the court shall require a bond with good and sufficient surety, conditioned that the telecommunications company or any other party petitioning for review shall answer for all damages caused by the delay in enforcing the order of the commission and for all compensation for the difference between whatever sums for service provided by the telecommunications company that any person is compelled to pay pending review proceedings and the sum the person or corporation would have been compelled to pay had the commission's order not been stayed or suspended. The court may, in addition or in lieu of the bond, require other further security for the payment of the excess damages or charges.
Source: SL 1983, ch 332, § 3; SL 1987, ch 345, § 79.
49-31-42. Proceedings before circuit court on appeal--Priority.
Upon the filing of the record in the office of the clerk, the circuit court shall process the appeal pursuant to chapter 1-26. Such cases have precedence over all other civil causes pending before the court.
Source: SL 1983, ch 332, § 5; SL 1987, ch 345, § 80; SL 1992, ch 328, § 34.
49-31-44. Creation of telecommunications investigation fund--Purposes of fund--Deposit by telecommunications company.
There is hereby created a fund within the state treasury to be known as the telecommunications investigation fund which shall be used by the commission to defray the expenses of conducting investigations or public hearings relating to §§ 49-31-3.2 to 49-31-3.4, inclusive, 49-31-4, and 49-31-4.1, or arbitration proceedings conducted pursuant to 47 U.S.C. § 252 as of January 1, 1998. Each telecommunications company as defined in subdivision 49-31-1(26) that is a party to an official docket to exercise commission authority pursuant to §§ 49-31-3.2 to 49-31-3.4, inclusive, 49-31-4 and 49-31-4.1, or arbitration proceedings conducted pursuant to 47 U.S.C. § 252 as of January 1, 1998, shall make a deposit not to exceed seventy-five thousand dollars in the telecommunications investigation fund. The amount and the division of the deposit among the companies, if any, shall be designated by commission order. However, any costs incurred related to arbitration proceedings conducted pursuant to 47 U.S.C. § 252 as of January 1, 1998, shall be shared equally among the parties. The commission shall use the deposit to defray the expense incident to conducting the hearing or investigation of the company making the deposit. The deposit is appropriated to the use of the commission for such purpose. The funds necessary for such expenses are hereby authorized to be expended.
Source: SL 1951, ch 260, § 1; SL 1953, ch 280, § 1; SDC Supp 1960, § 52.0273; SDCL, § 49-10-28; SL 1987, ch 345, § 82; SL 1988, ch 375, § 30; SL 1991, ch 381, § 11; SL 1998, ch 274, § 26.
49-31-45. Payment of investigation and hearing expenses--Procedure for payment--Accounting of company's deposit--Notice and order as to amount to be returned.
The expenses incurred in any investigation or hearing conducted in pursuance of § 49-31-44 shall be paid out of the fund on warrants drawn by the state auditor upon itemized vouchers submitted by the commission. The commission shall keep and maintain a detailed record of the amount expended from each deposit by each company making a deposit. Upon the conclusion of the investigation or hearing, the commission shall make an accounting of the deposit and shall give the company making the deposit, within thirty days of the final decision, notice in writing of the itemization and the amount that is proposed to be returned to the company. Any company protesting the itemization may file objections with the commission within thirty days of receiving the itemization. The commission shall resolve any objections by order consistent with chapter 1-26.
Source: SL 1951, ch 260, § 2; SL 1953, ch 280, § 1; SDC Supp 1960, § 52.0273; SDCL, § 49-10-29; SL 1987, ch 345, § 83; SL 1988, ch 375, § 31; SL 1991, ch 381, § 12.
49-31-46. Payment for participation in federal proceedings.
The commission is hereby authorized, in addition to the purposes referred to in § 49-31-44, to use the telecommunications investigation fund therein created to defray the cost and expense of participating in proceedings before federal agencies involving increases in interstate rates in South Dakota by any telecommunications company.
Source: SL 1957, ch 269; SDC Supp 1960, § 52.0273-1; SDCL, § 49-10-30; SL 1987, ch 345, § 84; SL 1991, ch 381, § 13.
49-31-47. Communication devices and services provided to persons with disabilities.
The Department of Human Services shall establish and administer a statewide program to provide telecommunication and other communication devices and services to residents of this state who have disabilities that prevent them from having communication access and maintain a dual party relay system making all phases of public telecommunications and communication service available to persons who are deaf, hard of hearing, or speech impaired. This program may be implemented through contracts with public or private organizations that provide services to persons who are deaf or persons with other severe disabilities.
Source: SL 1989, ch 401, § 1; SL 1997, ch 267, § 1; SL 2014, ch 221, § 1; SL 2019, ch 8, § 6.
49-31-48. Telecommunication or communication device for individuals with disabilities--Dual party relay system.
A telecommunication or communication device for individuals with disabilities is a device that enables the individual to communicate. A dual party relay system provides voice, digital and electronic text, or visual communication between users of telecommunication or communication devices and other persons.
Source: SL 1989, ch 401, § 6; SL 1997, ch 267, § 2; SL 2014, ch 221, § 2.
49-31-49. Telecommunication or communication device remains property of state for three years.
A telecommunication or communication device furnished by the Department of Human Services pursuant to the provisions of §§ 49-31-47 to 49-31-56, inclusive, remains the property of the state for three years, after which it becomes the property of the recipient. During the initial three years, a person who receives a telecommunication or communication device from the department pursuant to the provisions of this section is liable to the department for the loss of or damage to the device. Any money collected by the department pursuant to the provisions of this section shall be deposited in the telecommunication fund from which the expenditure occurred.
Source: SL 1989, ch 401, § 2; SL 1997, ch 267, § 3; SL 2014, ch 221, § 3.
49-31-50. Telecommunication funds for persons with hearing and other disabilities--Continuous appropriation.
There is created in the state treasury the telecommunication fund for the deaf and the telecommunication fund for other disabilities for the deposit and disbursement of money collected pursuant to the provisions of §§ 49-31-49 and 49-31-51. There is hereby continuously appropriated the sum of two hundred thousand dollars ($200,000), or so much thereof as may be necessary, each year from the telecommunication fund for the deaf to the Department of Human Services to provide one or two cochlear implants to any child who suffers from severe to profound hearing loss. The child shall be less than twenty-one years of age at the time of the implant.
Source: SL 1989, ch 401, § 3; SL 1990, ch 373, § 1; SL 1997, ch 267, § 4; SL 2005, ch 246, § 1; SL 2007, ch 268, § 1; SL 2010, ch 222, § 1; SL 2014, ch 221, § 4.
49-31-50.1. Use of funds appropriated pursuant to § 49-31-50.
Funds appropriated pursuant to § 49-31-50 may only be used for:
(1) The costs of providing a cochlear implant to a child who is not covered under a plan of health insurance; or
(2) Any portion of the costs of providing a cochlear implant to a child that is not paid by any plan of health insurance covering the child but only for those amounts payable by the covered person under the plan's deductible and coinsurance provisions.
Source: SL 2005, ch 246, § 2.
49-31-50.2. Rules relating to cochlear implants.
The Department of Human Services shall promulgate rules pursuant to chapter 1-26 to establish standards for eligibility criteria, the basis for and extent of provider payments on behalf of the eligible person, levels of payment, administration, audit requirements, and record keeping of providing cochlear implants.
Source: SL 2005, ch 246, § 3.
49-31-50.3. Approval of vouchers--Warrants.
The secretary of the Department of Human Services shall approve vouchers and the state auditor shall draw warrants to pay expenditures authorized by §§ 49-31-50 to 49-31-50.3, inclusive.
Source: SL 2005, ch 246, § 4.
49-31-51. Access fee imposed on local exchange service lines, cellular telephones and radio pager devices--Report of fee on monthly bills--Report on and remission of fees--Disposition of funds collected.
There is hereby imposed an access fee of fifteen cents per local exchange service line per month, fifteen cents per cellular telephone per month in accordance with the provisions provided in subdivision 34-45-1(7), and fifteen cents per radio pager device per month to pay for the program established in § 49-31-47. The access fee shall be paid by each local exchange subscriber to a local exchange service, or by each cellular telephone or radio pager service subscriber to the service provider, unless the subscriber is otherwise exempt from taxation. The access fee shall be reported as a separate line or service and collected on the regular monthly bill by each local exchange telecommunications company or other service provider operating in this state. On or before the last day of the month following each two-month period, every telecommunications company providing local exchange service or other service provided specified in this section shall remit to the Department of Revenue on forms furnished by the department the amount of the access fee collected for that two- month period. The secretary of revenue may grant an extension of not more than five days for filing a remittance. The Department of Revenue shall deposit ninety percent of the money received pursuant to the provisions of §§ 49-31-47 to 49-31-56, inclusive, into the telecommunication fund for the deaf and ten percent in the telecommunication fund for other disabilities.
Source: SL 1989, ch 401, § 4; SL 1991, ch 385; SL 1997, ch 267, § 5; SL 2002, ch 61, § 4; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2006, ch 237, §§ 1, 2; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2014, ch 221, § 5.
49-31-51.1. Promulgation of rules to administer access fee.
The secretary of revenue may promulgate rules, pursuant to chapter 1-26, to administer the fee imposed pursuant to § 49-31-51. The rules may include:
(1) The filing of returns and payment of the fee;
(2) Determining the application of the fee;
(3) Record-keeping requirements; and
(4) Determining auditing methods.
Source: SL 2000, ch 68, § 2; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
49-31-52. Liability for uncollected fees.
No local exchange telecommunications company has any obligation to take any legal action to enforce the collection of any charge imposed pursuant to §§ 49-31-47 to 49-31-56, inclusive. The local exchange company is not liable for such uncollected amounts.
Source: SL 1989, ch 401, § 4A.
49-31-53. Annual review of access fee--Report to legislature.
The access fee imposed in § 49-31-51 is subject to annual review by the Department of Human Services. Each year the department shall report to the legislature and recommend whether the access fee should be increased or decreased in order that the money raised by the access fee pays for the costs of the program.
Source: SL 1989, ch 401, § 5.
49-31-54. Administrative cost for collection of fee.
The local exchange telecommunications company may deduct and retain one hundred dollars or one percent of the collected amount, whichever is greater, as the cost of administration for collecting the charge.
Source: SL 1989, ch 401, § 5A.
49-31-55. Sources of funds in addition to access fees.
The secretary of the Department of Human Services may accept and expend for the purpose of §§ 49-31-47 to 49-31-56, inclusive, in addition to the amount in § 49-31-47, any funds obtained from federal sources, gifts, contributions or any other source if such acceptance and expenditure is approved in accordance with § 4-8B-10.
Source: SL 1989, ch 401, § 7.
49-31-56. Method of payment of expenditures.
Expenditures authorized by the provisions of §§ 49-31-47 to 49-31-56, inclusive, shall be paid on warrants drawn by the state auditor on vouchers approved by the secretary of the Department of Human Services. Expenditure for services for individuals who have deafness, deaf blindness, hearing impairments, and speech impediments and expenditures for the dual party relay service shall be paid from the telecommunication fund for the deaf. Expenditure for services for individuals with all other disabilities shall be paid from the telecommunication fund for other disabilities.
Source: SL 1989, ch 401, § 8; SL 1997, ch 267, § 6; SL 2014, ch 221, § 6.
49-31-56.1. Promulgation of rules regarding telecommunications and communication services program.
The Department of Human Services may promulgate rules, pursuant to chapter 1-26, for the administration of the telecommunications and communication services program. The rules may include:
(1) Eligibility determination, criteria, and application procedures;
(2) The amount and scope of services; and
(3) Methods of administration.
Source: SL 2014, ch 221, § 7.
49-31-57. Penalty for pleading filed for improper purpose--Sanction by commission.
The commission may on its own motion or upon the motion of any party, assess against a party reasonable attorney fees, expert witness fees, discovery costs, transcript fees or other expenses of the commission or another party to a proceeding if a party has filed a pleading with the commission that is interposed for an improper purpose, such as to harass, cause unnecessary delay or needlessly increase the cost of litigation. Any sanction imposed by the commission shall be pursuant to and consistent with § 15-6-11.
Source: SL 1992, ch 328, § 40.
49-31-58. Alternative methods of assigning costs for certain services.
If it is determined to be in the public interest, the commission may utilize cost allocation methods other than fully distributed methods as provided for in § 49-31-4 for the assignment of costs among jointly provided noncompetitive services, emerging competitive services, or fully competitive services. In determining whether any alternative method of assigning costs is in the public interest the commission shall consider:
(1) The impact of the method on efforts to preserve universal telecommunications service;
(2) The extent to which the method will promote competition and facilitate the offering of advanced telecommunications services to all classes of ratepayers throughout the state; and
(3) Any other factors that the commission considers relevant to the public interest.
Source: SL 1995, ch 263, § 1.
49-31-59. Procedures for approving sale of telecommunications exchanges.
Any sale of a telecommunications exchange shall be approved by the commission. Within twenty days following receipt of a telecommunications company's application to sell an exchange, the commission shall publish notice of the proposed sale in a newspaper of general circulation in each county in which an exchange to be sold provides service. The applicant shall reimburse the commission for the cost of the publication. The notice shall inform the public of their right to file a petition of intervention in the proceeding or to submit comment within fifteen days following publication of the notice. The commission shall consider the protection of the public interest, and to the extent applicable, the adequacy of local telephone service, the reasonableness of rates for local service, the provision of 911, enhanced 911, and other public safety services, the payment of taxes, and the ability and commitment of the local exchange company to provide modern, state-of-the-art telecommunications services. If no hearing is held on the application, the commission shall issue its order pursuant to this section within forty-five days following the publication of the notice. If a hearing is held on the application, the commission shall issue its order pursuant to this section within one hundred twenty days following the publication of the notice. The commission's order may include conditions that the commission finds necessary to ensure compliance with the criteria set forth in this section. For the purposes of this section, the term, sale, means the passing, for consideration, of title to the assets comprising a telecommunications exchange, but does not include nonasset sale transactions such as mergers, consolidations, stock sales, or financing transactions. For the purposes of this section, the term, exchange, means the switching, transmission, other equipment and facilities and associated permits, authorizations, service rights, customer contracts, and related assets by which a telecommunication company provides local exchange service throughout a local exchange area utilizing its own facilities.
Source: SL 1995, ch 263, § 2; SL 2005, ch 245, § 2.
49-31-59.1. Legislative intent--Joint provisioning and revenue-pooling arrangements--Commission review and approval--Exemptions--Construction.
It is the intent of the Legislature to encourage telecommunications companies to more efficiently meet the infrastructure deployment goal described in §§ 49-31-60 and 49-31-61 for a fully integrated SONET backbone of interconnected survivable rings. To that end, telecommunications companies may jointly provide facilities and enter into revenue-pooling arrangements between and among themselves relating to the provisioning of these facilities. Any such arrangement shall be subject to commission review and approval and, to the extent it has received such approval, may not be construed as violating any state or local laws governing unfair trade practices, antitrust or restraint of trade. Further, it is the intent of the Legislature that any such approved arrangement shall be exempt from federal laws governing unfair trade practices, antitrust, or restraint of trade. Except with respect to such joint provisioning of facilities and revenue pooling arrangements approved by the commission, both state and federal laws governing unfair trade practices, antitrust, and restraint of trade shall apply with full force and effect. The joint provisioning of facilities within an arrangement consistent with the limited purpose described in this section may not be construed as imposing additional common carrier obligations on the participating companies. The provisions of this section may not be construed to permit any telecommunications company to take any action that is contrary to the public interest.
Source: SL 1998, ch 274, § 27.
49-31-60. Telecommunications infrastructure--Legislative intent.
It is the intent of the Legislature that South Dakota have a telecommunications infrastructure that meets the advanced communication needs of the state's individual citizens and its communities of interest, including our schools, medical facilities, businesses, and all levels of government. To achieve this intent, it is anticipated that three networks, accessible by all South Dakotans, will be established: a narrowband network, a wideband network, and a broadband network. Together, these three networks will form South Dakota's Public Communications Network Infrastructure. This infrastructure will enable any-to-any voice, data, videoconferencing, graphics, imaging, and multimedia communications. These three networks will fully support the following capability requirements: ubiquitous, feature rich, standard, secure, private, survivable, robust, addressable, switched, affordable, and available. Communications services will be reasonably and affordably priced. Classes of service will be created for network services in order to establish a service-based and value-based pricing model. The new narrowband, wideband, and broadband communications networks will be established in a manner ensuring that all the citizens of South Dakota realize the advantages of the forthcoming information age, including economic development, educational opportunities, a heightened level of medical care, and better, more efficient service from all levels of government.
It is the intent of the Legislature, that:
(1) The Public Communications Network Infrastructure will grow and enhance with expanding user needs and advancements in technologies' bandwidth and feature capabilities;
(2) This layered network hierarchy, based upon a fully integrated backbone of interconnected switched survivable rings, will carry independent and fully integrated voice, data, and video communications; and
(3) The network architecture will enable access and interconnection points for public-to-public, public-to-private, and wireline-to-wireless inter-networking.
Source: SL 1997, ch 266, §§ 1, 11, 12; SL 1999, ch 224, § 2.
49-31-61. Public Communications Network Infrastructure--Composition.
South Dakota's Public Communications Network Infrastructure shall be composed of three networks: a narrowband network, a wideband network, and a broadband network.
Source: SL 1997, ch 266, § 3.
49-31-69. Certificate of authority for construction of telecommunications facility--Extension outside local exchange service area application--Amended certificate.
No telecommunications company may begin the construction of a telecommunications facility intended to provide local exchange service, commence operating a telecommunications facility for the purpose of providing local exchange service, or offer or otherwise provide local exchange service in this state prior to receiving a certificate of authority to provide the service from the commission. A company may not extend an existing telecommunications facility outside its local exchange service area for the purpose of providing local exchange service in a service area in which it is not certified without applying to the commission for authority to do so. Any telecommunications company seeking to amend or alter its authorized local exchange service territory shall apply for an amended certificate of authority. An application for an amended certificate is subject to the same requirements as an application for an initial certificate. The commission has the exclusive authority to grant a certificate of authority.
Source: SL 1998, ch 274, § 6.
49-31-70. Application for certificate of authority--Notice.
An application for a certificate of authority to provide local exchange service shall set forth with particularity the proposed geographic territory to be served and provide information regarding the types of local exchange services to be provided. Each telecommunications company holding a certificate of authority to provide local exchange service within the geographic area where an applicant is seeking to provide local exchange service shall be provided notice of the application and be granted intervenor status in any commission proceeding on the application.
Source: SL 1998, ch 274, § 7.
49-31-71. Certificate of authority--Notice and hearing.
The commission shall issue a certificate of authority for local exchange service to the applying telecommunications company, if, after notice and opportunity for hearing pursuant to chapter 1-26, the applicant has demonstrated sufficient technical, financial, and managerial capabilities to provide the local exchange services applied for. In granting a certificate of authority to provide local exchange service, the commission may impose terms and conditions, on a competitively neutral basis, that it finds consistent with preserving and advancing universal service, protecting the public safety and welfare, ensuring the continued quality of service, and safeguarding the rights of consumers.
Source: SL 1998, ch 274, § 8.
49-31-72. Certificate of authority--Time limit for decision.
Except when an evidentiary hearing is required by the commission, the commission shall act on an application for a certificate of authority to provide local exchange service within sixty days of receiving a complete application. If an evidentiary hearing is required, the commission shall act on the application within one hundred twenty days of receipt of a complete application.
Source: SL 1998, ch 274, § 9.
49-31-73. Rural service areas--Services--Waiver.
Except as provided in 47 U.S.C. § 253(f) as of January 1, 1998, if the applicant proposes to provide any local exchange service in the service area of a rural telephone company, the applicant is required to satisfy the service obligations of an eligible telecommunications carrier as set forth in 47 U.S.C. § 214(e)(1) as of January 1, 1998, within a geographic area as determined by the commission. In addition, the services required to be provided as set forth in 47 U.S.C. § 214(e)(1) as of January 1, 1998, shall be provided at prices and on terms which reflect a good faith offering of the services throughout the service area of the incumbent rural telephone company. This includes the obligation to advertise the availability of local exchange services and prices to potential customers throughout the service area using media of general distribution. However, an applicant may petition the commission for a waiver from the requirement of satisfying the service obligations of an eligible telecommunications carrier. The commission may grant the waiver if, after notice and hearing pursuant chapter 1-26, it is established by a preponderance of the evidence that the waiver would not adversely impact universal service, that quality of service would be continued, and that it would otherwise be in the public interest.
Source: SL 1998, ch 274, § 10.
49-31-74. Certificate of authority--Retroactive application--Alterations or additions.
Any certificate of authority for local exchange service granted by the commission to a telecommunications company prior to July 1, 1998, shall remain in full force and effect unless modified by the commission, and such company need not apply for certification in order to continue offering or providing service to the extent authorized in such certificate of authority. Prior to substantially altering the nature or scope of services provided under a certificate of authority, or adding or expanding services beyond the authority contained in such certificate, any such carrier shall apply for a certificate of authority for such alterations or additions.
Source: SL 1998, ch 274, § 11.
49-31-75. Certificate of authority--Commission approval--Violations.
A certificate of authority for local exchange service issued by the commission may not be sold, assigned, leased, or transferred without commission approval. Any certificate of authority issued by the commission may be suspended or revoked, pursuant to chapter 1-26, for a willful violation of the laws of this state, a willful failure to comply with a rule or order of the commission, or other good cause. The offering of any local exchange telecommunications service without a certificate of authority or which is inconsistent with this section is a Class 1 misdemeanor.
Source: SL 1998, ch 274, § 13.
49-31-76. Commission to adopt rules addressing competitive provisions.
Within ninety days after July 1, 1998, the commission shall initiate rule-making proceedings pursuant to chapter 1-26 to adopt rules addressing the competitive provisioning of local exchange service which, consistent with 47 U.S.C. § 253(b) as of January 1, 1998, shall be directed toward preserving and advancing universal service, protecting the public safety and welfare, ensuring the continued quality of service, and safeguarding the rights of affected consumers. The preservation and advancement of universal service shall be a primary concern. The commission shall adopt and implement the rules no later than one hundred eighty days after July 1, 1998.
Source: SL 1998, ch 274, § 14.
49-31-77. Commission may promulgate rules establishing service quality standards.
The commission may promulgate rules pursuant to chapter 1-26 to establish service quality standards for local exchange services.
Source: SL 1998, ch 274, § 15.
49-31-78. Commission shall designate eligible telecommunications carrier for service area--Right to relinquish designation.
The commission shall designate a common carrier as an eligible telecommunications carrier for a service area designated by the commission consistent with 47 U.S.C. § 214(e) as of January 1, 1998. The commission may permit an eligible telecommunications carrier to relinquish its designation as such a carrier in any area served by more than one eligible telecommunications carrier consistent with 47 U.S.C. § 214(e)(4) as of January 1, 1998. The commission may designate a common carrier or carriers to provide service to unserved areas that request such service consistent with 47 U.S.C. § 214(e)(3) as of January 1, 1998. The commission may not in an area served by a rural telephone company designate more than one eligible telecommunications carrier absent a finding that the additional designation would be in the public interest.
Source: SL 1998, ch 274, § 16.
49-31-79. Requirements of rural telephone company.
Pursuant to 47 U.S.C. § 251(f)(1) as of January 1, 1998, the obligations of an incumbent local exchange carrier, which include the duty to negotiate and provide interconnection, unbundled network elements, resale, notice of changes and collocation, do not apply to a rural telephone company unless the company has received a bona fide request for interconnection, services, or network elements and the commission determines that the rural telephone company shall fulfill the request. The commission may only determine that the rural telephone company shall fulfill the request if, after notice and hearing pursuant to chapter 1-26, the commission finds that the request is not unduly economically burdensome, the request is technically feasible, and the request is consistent with the universal service principles and provisions set forth in 47 U.S.C. § 254 as of January 1, 1998. The commission shall make the determination within one hundred twenty days after receiving notice of the request. The person or entity making the request has the burden of proof as to whether each of the standards for reviewing the request has been met. Nothing in this section prevents a rural telephone company from voluntarily agreeing to provide any of the services, facilities, or access referenced by this section.
Source: SL 1998, ch 274, § 17; SL 1998, ch 274, § 17; SL 1998, ch 275, § 3; SL 2021, ch 200, § 8.
49-31-80. Suspension or modification to carrier with small service area.
Consistent with 47 U.S.C. § 251(f)(2) as of January 1, 1998, the commission may grant a suspension or modification of any of the interconnection or other requirements set forth in 47 U.S.C. §§ 251(b) and 251(c), as of January 1, 1998, to any local exchange carrier which serves fewer than two percent of the nation's subscriber lines installed in the aggregate nationwide. Any such carrier shall petition the commission for the suspension or modification. The commission shall grant the petition to the extent that, and for such duration as, the commission determines that the requested suspension or modification is consistent with the public interest, convenience, and necessity and is necessary:
(1) To avoid a significant adverse economic impact on users of telecommunications services generally;
(2) To avoid imposing a requirement that is unduly economically burdensome; or
(3) To avoid imposing a requirement that is technically infeasible.
The commission may suspend enforcement of the requirement or requirements identified in the petition pending final action on the requested suspension or modification.
Source: SL 1998, ch 274, § 18.
49-31-81. Carrier to provide services to competitive telecommunications services provider.
The commission may implement and comply with the provisions of the federal Telecommunications Act of 1996, including the promulgation of rules pursuant to chapter 1-26. Except to the extent a local exchange carrier is exempt from or has received a suspension or modification pursuant to 47 U.S.C. § 251(f)(1) or 251(f)(2), as of January 1, 1998, and the provisions of this chapter, the carrier shall provide interconnection, network elements, and other telecommunications services to any provider of competitive telecommunications services that requests such interconnection and services to the extent required by 47 U.S.C. §§ 251(a) to 251(c), inclusive, as of January 1, 1998. If the parties are unable to voluntarily negotiate an agreement for the interconnection or services requested, either party may petition the commission to mediate or arbitrate any unresolved issues as provided in 47 U.S.C. § 252. The provisioning of interconnection, network elements, and other telecommunications services to the extent required by 47 USC §§ 251(a) to 251(c), inclusive, by a local exchange carrier pursuant to this section is not subject to §§ 49-31-1.1 to 49-31-1.4, inclusive, 49-31-3.1 to 49-31-4, inclusive, 49-31-12.2, 49-31-12.4, 49-31-12.5, and 49-31-18 and 49-31-19, inclusive.
Source: SL 1998, ch 274, § 23.
49-31-82. Certain resale restrictions permitted.
It is recognized that certain resale restrictions may be necessary to prevent unfair competition, preserve universal service and otherwise protect the public interest. The commission may permit reasonable and nondiscriminatory resale restrictions proposed by local exchange carriers that are consistent with 47 U.S.C. § 251(c)(4) and that do not constitute a barrier to entry under 47 U.S.C. § 253(a). The commission may adopt rules pursuant to chapter 1-26 to implement this section.
Source: SL 1998, ch 274, § 24.
49-31-83. Telecommunications companies may form associations--Policy restrictions.
The commission may not prohibit telecommunications companies from voluntarily forming an association to assist in the administration and filing of schedules or tariffs and to engage in the pooling of access costs and revenues in a manner which is consistent with preserving and advancing universal service throughout this state or consistent with the Public Communications Network Infrastructure policies set forth in §§ 49-31-60 and 49-31-61.
Source: SL 1998, ch 274, § 25.
49-31-84. Telecommunication companies may grant incentives to meet competition.
It is in the public interest and essential that local exchange telecommunication companies over all of South Dakota continue to be viable providers of affordable local exchange services. Local exchange telecommunication companies receive substantial revenue necessary to support the exchange from a minority of their customers. Local exchange telecommunication companies must be allowed to compete to keep their profitable customers in order to maintain the viability of local exchanges. However, customers in rural and high-cost areas shall have access to telecommunications and information services, including interexchange services, that are reasonably comparable to those services provided in urban areas and that are available at rates that are reasonably comparable to rates charged for similar services in urban areas.
Notwithstanding any other provisions of chapter 49-31, any telecommunication company may grant any discounts, incentives, services, or other business practices necessary to meet competition. Nothing in chapter 49-31 restricts or prevents telecommunication companies from offering reduced prices and special terms and conditions for this state, its existing instrumentalities and subdivisions, for the United States and for K through 12 schools accredited by the secretary of the Department of Education.
Source: SL 1998, ch 274, § 28; SL 2003, ch 272 (Ex. Ord. 03-1), § 63.
49-31-85. Commission to establish quality of service standards.
Any regulation of telecommunications service by the commission pursuant to chapters 49-13 and 49-31 shall be fair, reasonable, nondiscriminatory and applicable to all telecommunications carriers providing service in the state. The commission shall establish, by rules promulgated pursuant to chapter 1-26, quality of service standards.
Source: SL 1998, ch 274, § 29.
49-31-86. Restrictions on price changes for local exchange service--Exemption for promotions.
Prices for residential and business local exchange service, both recurring and nonrecurring, for a telecommunications company with more than two hundred thousand retail access lines in the state may not be changed unless reduced by the company. If the telecommunications company reduces its prices for residential or business local exchange service pursuant to §§ 49-31-1 to 49-31-88, inclusive, it may not subsequently increase such prices. However, this restriction does not apply to promotions that last ninety days or less. The telecommunications company shall publicly announce the beginning and ending date of the promotion period. The provisions of § 49-31-4 and §§ 49-31-12 to 49-31-12.5, inclusive, do not apply to prices for services regulated by this section.
Source: SL 1998, ch 274, § 30; SL 1999, ch 226, § 1.
49-31-86.1. Limitation on promotions.
No telecommunications company may offer any promotion exempt from the provisions of § 49-31-86 more than twice in any calendar year. No telecommunications company may run any such promotions consecutively. No benefit from a promotion may be extended to any customer beyond the promotion period.
Source: SL 1999, ch 226, § 2.
49-31-86.2. Exemption of § 49-31-86 to take effect December 31, 2000 for certain carriers.
The exemption for promotions provided by § 49-31-86 is not effective until December 31, 2000, in the local exchange area of any facilities-based competitive local exchange carrier certified by the commission that provides broadband network services throughout its local exchange area. However, the exemption for promotions provided by § 49-31-86 is not effective until July 1, 2001, in the local exchange area of any facilities-based local exchange carrier certified by the commission after July 31, 1998, that provides broadband network services throughout its local exchange area.
Source: SL 1999, ch 226, § 3; SL 2000, ch 223, § 1.
49-31-87. Dialing parity to be implemented.
Dialing parity, as defined in 47 U.S.C. § 153(15) as of January 1, 1998, for purposes of intraLATA long distance telecommunications services, shall be implemented by any local exchange carrier serving more than two hundred thousand retail access lines by order of the commission on January 1, 2000.
Source: SL 1998, ch 274, § 31; SL 1999, ch 225, § 2.
49-31-88. Companies not exempt from state or federal law.
Nothing in §§ 49-31-84 to 49-31-87, exempts any telecommunications company from any state or federal antitrust laws.
Source: SL 1998, ch 274, § 32.
49-31-89. Telecommunications company, services or product not to be changed without subscriber authorization--Evidence of authorization--Commission authorized to promulgate rules--Scope of rules.
The telecommunications company of any subscriber may not be changed without the telecommunications service subscriber's authorization. The telecommunications service subscriber's authorization shall be evidenced either by a written authorization signed by the subscriber or by the use of an independent third-party verification company which complies with the provisions of §§ 49-31-90 and 49-31-91, or by any other means authorized by the commission. Products or services may not be listed on a subscriber's bill unless authorized by the subscriber. The commission may promulgate rules pursuant to chapter 1-26 concerning procedures, requirements, and standards for changing a subscriber's telecommunications company and for listing products and services on a subscriber's bill.
Source: SL 1999, ch 227, § 1.
49-31-90. Third-party verification--Requirements.
If an independent third-party verification company obtains a subscriber's oral confirmation regarding a change of a designated telecommunications company for interexchange or local exchange telecommunications service, the third-party verification shall include:
(1) A statement that the purpose of the call is to verify the subscriber's intent to change to the newly requested telecommunications company. The newly requested interexchange or local telecommunications company shall be clearly identified to the subscriber. Reference to use of another telecommunications company's network or facilities, if stated, shall be secondary in nature to the prominent identification of the telecommunications company which will be providing service and setting the rates for the subscriber's service;
(2) Confirmation that the person whose authorization for a telecommunications company change is being verified is the subscriber on the account or a person authorized by the subscriber to make decisions regarding the telecommunications account on behalf of the subscriber, whether that subscriber is an individual person or a business;
(3) Verification data unique to the subscriber such as the subscriber's date of birth; and
(4) The name and toll-free telephone number of the newly requested telecommunications company.
The third-party verification company shall electronically record the telephone call that confirms the subscriber's change of a designated telecommunications company. The electronic recording shall include the complete statement of the service being changed and the subscriber's complete response. The electronic recording shall be retained by the third-party verification company for two years.
Source: SL 1999, ch 227, § 2.
49-31-91. Criteria to be met by third-party verification company.
The third-party verification company shall meet each of the following criteria:
(1) Be independent of the telecommunications company that seeks to provide the subscriber's new service;
(2) Not be managed, controlled, or directed or owned wholly or in part, by the telecommunications company that seeks to provide the subscriber's new service;
(3) Operate from facilities physically separate from those of the telecommunications company that seeks to provide the subscriber's new service; and
(4) Not derive commissions or compensation based upon the number of sales confirmed.
Source: SL 1999, ch 227, § 3.
49-31-92. Separate authorization required for each service.
A telecommunications company selling more than one type of telecommunications service must obtain separate authorization to change a telecommunications company from the subscriber for each service sold, although the authorizations may be made within the same solicitation. At a minimum, separate authorizations must be obtained for local exchange service, intraLATA toll service, and interLATA toll service. Each authorization must be verified separately from any other authorizations obtained in the same solicitation.
Source: SL 1999, ch 227, § 4.
49-31-93. Subscriber not liable for unauthorized change of carrier, products or services--Company to compensate subscriber.
A subscriber is not liable for any charges imposed by a telecommunications company that initiates a telecommunications carrier change without authorization from the subscriber or for the billing of unauthorized products or services. In addition, the telecommunications company that initiates the unauthorized change or the billing of unauthorized products or services shall pay to the subscriber one thousand dollars.
Source: SL 1999, ch 227, § 5.
49-31-94. Penalties for violation--Disposition of fines collected.
Any person who violates §§ 49-31-89 to 49-31-97, inclusive, or any rules promulgated pursuant to §§ 49-31-89 to 49-31-97, inclusive, is subject to a civil penalty to be imposed by the commission, after notice and opportunity for hearing. The commission may impose a civil fine of not more than twenty thousand dollars for each offense. In determining the amount of the penalty upon finding a violation, or the amount of the compromise settlement, the commission shall consider the appropriateness of the penalty to the size of the business of the person charged, prior offenses and compliance history, the good faith of the person charged in attempting to achieve compliance, and such other matters as justice may require. All penalties collected pursuant to this section shall be deposited in the state treasury. In addition to assessing a civil penalty for a violation of §§ 49-31-89 to 49-31-97, inclusive, the commission may revoke or suspend a telecommunications company's certificate of authority for repeated offenses.
Source: SL 1999, ch 227, § 6.
49-31-95. Commission authorized to investigate complaints.
If the commission receives more than two complaints within thirty days regarding violations of § 49-31-89, the commission may require the telecommunications company responsible for the violations to provide the commission with a complete list of its current subscribers, including the subscribers' billing addresses. The list may be filed as confidential consistent with the commission's rules. The commission may contact each subscriber to determine whether any subscriber has been subject to an unauthorized change in a telecommunications company or billed for unauthorized products or services. If the commission finds, after notice and opportunity for hearing, that a telecommunications company has committed two separate violations of § 49-31-89 within one year, the commission may assess the costs of contacting subscribers to the telecommunications company.
Source: SL 1999, ch 227, § 7.
49-31-96. Costs of commission proceedings may be assessed against company--Objection.
If the commission finds the company has committed a violation of §§ 49-31-89 to 49-31-97, inclusive, after holding a contested case proceeding or if allowed by § 49-31-95, the commission may assess the actual costs of the contested case proceeding or contacting subscribers to the telecommunications company. The assessment shall be limited to actual amounts expended by the commission for commission employee time, expert witnesses, court reporter fees, document and exhibit preparation, and other necessary and related expenses incurred by the commission. The telecommunications company may, within thirty days after the assessment is mailed, file written objections with the commission stating the grounds upon which it claims that the assessment is not reasonable. The commission shall within thirty days of receiving such objections hold a hearing and issue an order in accordance with its findings as to the proper amount to be assessed to the telecommunications company. The order may be appealed pursuant to chapter 1-26.
Source: SL 1999, ch 227, § 8.
49-31-97. "Subscriber" defined.
For the purpose of §§ 49-31-89 to 49-31-97, inclusive, the term, subscriber, means any person who contracts with a telecommunications company for telecommunications services.
Source: SL 1999, ch 227, § 9.
49-31-98. Agencies to establish cost recovery mechanism for certain mandated services--Exemption.
Any decision or order by any agency which requires the provision of telecommunications services, in excess of voice grade local exchange service, shall establish a cost recovery method or mechanism to ensure that the telecommunications company will be able to recover the cost of the investment or expense in a period not to exceed ten years, from the services that result from such mandate. These costs may be recovered either regionally or statewide at the discretion of the agency. This section does not affect any decision or order made by any agency to comply with 47 U.S.C. § 251 as of January 1, 1999.
Source: SL 1999, ch 225, § 1.
49-31-99. Requirements for telephone solicitors making unsolicited calls.
Any telephone solicitor who makes unsolicited telephone calls shall institute procedures that comply with the provisions of this chapter for obtaining a list of persons who do not wish to receive unsolicited telephone calls made by or on behalf of the telephone solicitor. No telephone solicitor may make an unsolicited telephone call to any number listed on the register. The commission may promulgate rules, pursuant to chapter 1-26, concerning procedures and requirements regarding the implementation of a register, setting of fees for purchase of the register, form of the application, requirements for acquiring a copy of the register, requirements for enrollment on and removal from the register, procedures for maintaining a register, setting of fees to enroll or renew enrollment on the register, procedures for operating the register, standards concerning the use of the register, and application of the civil fines.
Source: SL 2003, ch 238, § 2.
49-31-100. Operation of and subscription to register--Fees.
The commission shall establish or provide for the operation of a register. The register may be operated by the commission or by another entity under contract with the commission. A residential telephone subscriber may enroll on the register in accordance with procedures prescribed by the commission. A subscriber shall pay to the commission a fee, set pursuant to § 49-31-99, of not more than five dollars to be listed on the register. Fees collected under this section shall be credited to the telephone solicitation account established in § 49-31-104.
Source: SL 2003, ch 238, § 7.
49-31-101. State "do-not-call" register.
The commission shall maintain a register of names and telephone numbers of each South Dakota residential telephone subscriber who has elected not to receive unsolicited telephone calls. The commission may provide to the Federal Trade Commission, for inclusion in the national "do-not-call" registry, the telephone numbers listed in the register. The commission may include South Dakota residential telephone subscribers listed in the national "do-not-call" registry in the register.
Source: SL 2003, ch 238, § 3.
49-31-102. Copy of register required for telephone solicitors making unsolicited calls.
Any telephone solicitor who makes unsolicited telephone calls to South Dakota residential telephone subscribers shall obtain a copy of the register.
Source: SL 2003, ch 238, § 4.
49-31-103. Commission may use national "do-not-call" registry.
Notwithstanding any other provision of §§ 49-31-99 to 49-31-108, inclusive, the commission may use the national "do-not-call" registry established and maintained by the Federal Trade Commission as the register.
Source: SL 2003, ch 238, § 8.
49-31-104. Telephone solicitation account established.
There is hereby established in the state treasury, the telephone solicitation account. Unless otherwise provided by law, this fund consists of all fees and fines imposed pursuant to §§ 49-31-99 to 49-31-108, inclusive, designated for deposit in the fund. The fund shall be maintained separately and administered by the commission to implement and administer provisions of this chapter. Any interest earned on money in the fund shall be deposited in the fund. Expenditures from the fund shall be budgeted through the normal budget process. Unexpended funds and interest shall remain in the fund until appropriated by the Legislature. Any expenditure from the fund shall be disbursed on warrants drawn by the state auditor and shall be supported by vouchers approved by the commission.
Source: SL 2003, ch 238, § 5; SL 2011, ch 207, § 1.
49-31-105. Annual fee for unsolicited calls by telephone solicitors.
Any telephone solicitor who makes unsolicited telephone calls to South Dakota residential telephone subscribers shall pay to the commission an annual fee of not more than five hundred dollars. Fees collected under this section shall be credited to the telephone solicitation account.
Source: SL 2003, ch 238, § 6.
49-31-106. Commission may use gross receipts tax fund for implementation--Funds to be returned after register implemented.
Notwithstanding the provisions of chapter 49-1A, the commission may use amounts deposited in the gross receipts tax fund to implement §§ 49-31-99 to 49-31-108, inclusive. All funds used shall be returned to the gross receipts tax fund within three years of implementation of the register.
Source: SL 2003, ch 238, § 9.
49-31-107. Telecommunications companies to notify customers of certain provisions.
Any telecommunications company that provides local exchange service shall inform its customers of the provisions of §§ 49-31-99 to 49-31-108, inclusive, by publication of the notice in the consumer pages of its telephone directories.
Source: SL 2003, ch 238, § 10.
49-31-108. Telephone solicitation--Violations--Civil penalty.
Any person who violates §§ 49-31-99 to 49-31-108, inclusive, or any rules promulgated pursuant to §§ 49-31-99 to 49-31-108, inclusive, is subject to a civil penalty to be imposed by the commission, after notice and opportunity for hearing. The commission may impose a civil fine of not more than five thousand dollars for each offense. In determining the amount of the penalty upon finding a violation, or the amount of a compromise settlement, the commission shall consider the appropriateness of the penalty to the size of the business of the person charged, prior offenses and compliance history, and the good faith of the person charged in attempting to achieve compliance. Any telephone solicitation made to a person whose name first appears on the register is not a violation of §§ 49-31-99 to 49-31-108, inclusive, if the solicitation is made within thirty days of the receipt of the register. Any penalty collected pursuant to this section shall be credited to the telephone solicitation account established pursuant to § 49-31-104.
Source: SL 2003, ch 238, § 11; SL 2021, ch 200, § 2.
49-31-109. Definitions.
Terms used in §§ 49-31-109 to 49-31-115, inclusive, mean:
(1) "Interexchange carrier," a telecommunications carrier providing nonlocal telecommunications services;
(2) "Local telecommunications traffic," any wireline to wireline telecommunications traffic that originates and terminates in the same wireline local calling area or wireline to wireless telecommunications traffic that originates within and is delivered to an actual point of presence established by a wireless service provider in the same wireline local calling area. Local telecommunications traffic also includes any wireless to wireline telecommunications traffic that originates and terminates in the same major trading area as defined in 47 CFR § 24.202(a) as of January 1, 2004;
(3) "Nonlocal telecommunications traffic," any wireline to wireline telecommunications traffic that originates in one wireline local calling area and terminates in another wireline local calling area and wireline to wireless telecommunications traffic that originates in one wireline local calling area and is delivered to an actual point of presence established by a wireless service provider in another wireline local calling area. Nonlocal telecommunications traffic also includes any wireless to wireline telecommunications traffic that originates in one major trading area and terminates in another major trading area;
(4) "Originating carrier," a telecommunications carrier whose network or service is used by a customer to originate telecommunications traffic. An originating carrier may be a wireline or wireless carrier transmitting local telecommunications traffic or an interexchange carrier transmitting nonlocal telecommunications traffic;
(5) "Terminating carrier," a telecommunications carrier upon whose network telecommunications traffic terminates to the called party;
(6) "Transiting carrier," a telecommunications carrier that does not originate or terminate telecommunications traffic, but either switches or transports traffic, or both, between an originating carrier and a terminating carrier;
(7) "Transit traffic," telecommunications traffic that an originating carrier has delivered to a transiting carrier or carriers for delivery to a terminating carrier.
Source: SL 2004, ch 284, § 1.
49-31-110. Local telecommunications traffic signaling information required to be provided by originating carrier to terminating carrier to assess charges.
If necessary for the assessment of transport and termination charges pursuant to 47 U.S.C. § 251(b)(5) as of January 1, 2004, an originating carrier of local telecommunications traffic shall, in delivering its traffic, transmit signaling information in accordance with commonly accepted industry standards giving the terminating carrier information that is sufficient to identify, measure, and appropriately charge the originating carrier for services provided in terminating the local telecommunications traffic. If the originating carrier is delivering both local and nonlocal telecommunications traffic, the originating carrier shall separately provide the terminating carrier with accurate and verifiable information, including percentage measurements that enables the terminating carrier to appropriately classify telecommunications traffic as being either local or nonlocal, and interstate or intrastate, and to assess the appropriate applicable transport and termination or access charges. If accurate and verifiable information allowing appropriate classification of the terminated traffic is not provided by the originating carrier, the terminating carrier may classify all unidentified traffic terminated for the originating carrier as nonlocal telecommunications traffic for service billing purposes.
Source: SL 2004, ch 284, § 2.
49-31-111. Nonlocal telecommunications traffic signaling information required to be provided by originating carrier to terminating carrier to assess charges.
An originating carrier of nonlocal telecommunications traffic shall, in delivering its traffic, transmit signaling information in accordance with commonly accepted industry standards giving the terminating carrier information that is sufficient to identify, measure, and appropriately charge the originating carrier for services provided in terminating the nonlocal telecommunications traffic. If the originating carrier is delivering both intrastate and interstate nonlocal telecommunications traffic, the originating carrier shall separately provide the terminating carrier with accurate information including verifiable percentage measurements that enables the terminating carrier to appropriately classify nonlocal telecommunications traffic as being either interstate or intrastate, and to assess the appropriate applicable access charges. If accurate and verifiable information allowing appropriate classification of the telecommunications traffic is not provided by the originating carrier, the terminating carrier may classify all unidentified nonlocal telecommunications traffic terminated for the originating carrier as intrastate telecommunications traffic for service billing purposes.
Source: SL 2004, ch 284, § 3.
49-31-112. Transiting carrier required to deliver signaling information with telecommunications traffic--Liability for failure to deliver.
A transiting carrier shall deliver telecommunications traffic to the terminating carrier by means of facilities and signaling protocols that enable the terminating carrier to receive from the originating carrier all signaling information, as required by §§ 49-31-110 and 49-31-111, the originating carrier transmits with its telecommunications traffic. If any transiting carrier fails to deliver telecommunications traffic to another transiting carrier or to the terminating carrier with all of the signaling information transmitted by the originating carrier as required by §§ 49-31-110 and 49-31-111, and this results in telecommunications traffic that is not identifiable and therefore not billable by the terminating carrier to the appropriate originating carrier, the transiting carrier is liable to the terminating carrier for the transport and termination or access compensation relating to the traffic that cannot be identified and billed to the appropriate originating carrier.
Source: SL 2004, ch 284, § 4.
49-31-113. Transit traffic or billing records to be provided by transiting carrier.
Upon the request of a terminating carrier, the transiting carrier shall provide detailed transit traffic records or billing records related to the telecommunications traffic delivered to the terminating carrier.
Source: SL 2004, ch 284, § 5.
49-31-114. Complaint procedure--Provisional remedies.
Any telecommunications carrier damaged by noncompliance with the provisions of §§ 49-31-109 to 49-31-115, inclusive, may file a complaint with the commission pursuant to the provisions of chapter 49-13. If a complaint is filed seeking enforcement of any of the provisions in §§ 49-31-109 to 49-31-115, inclusive, the commission is authorized to order interim payments to the damaged party or other appropriate relief pending the final resolution of the complaint proceeding.
Source: SL 2004, ch 284, § 6.
49-31-115. Promulgation of rules.
The commission may promulgate rules pursuant to chapter 1-26 for the purpose of implementing the provisions of §§ 49-31-109 to 49-31-115, inclusive. The rules may address:
(1) Defining the terms used in §§ 49-31-109 to 49-31-115, inclusive;
(2) Signaling information requirements;
(3) Carrier information necessary to appropriately classify telecommunications traffic;
(4) The handling of complaints filed by carriers under §§ 49-31-109 to 49-31-115, inclusive; and
(5) Transit traffic records.
Source: SL 2004, ch 284, § 7.
49-31-116. Required notice to subscribers of automatic renewal dates in certain telecommunications contracts.
Any telecommunications company having a contract with a subscriber for any retail telecommunications service that has a term of one year or more and that contains a provision requiring the subscriber to take any action to avoid automatic renewal of the contract for a renewal term greater than sixty days, shall give prior written notice to the subscriber of the action that the subscriber must take to avoid automatic renewal. The telecommunications company shall give notice to the subscriber not less than thirty and not more than sixty days before the date of the required action. The notice shall inform the subscriber in clear, plain and conspicuous language what action the subscriber must take to avoid renewal and the date by which the subscriber must take such action. If the company fails to give the notice required by this section, the automatic renewal provision may not be enforced against the subscriber, and the subscriber may terminate the contract at will following expiration of the original term without incurring any liability or penalty for early termination. The commission may promulgate rules pursuant to chapter 1-26 concerning the form, content, and means of delivery of the notice required by this section.
Source: SL 2004, ch 285, § 1.
49-31-117. Commission disbursement of certain bond or other proceeds to affected customers--Interest.
Upon receipt of any bond, letter of credit, or other proceeds that are payable to the commission and were issued to protect the financial interests of customers of a telecommunications company, the commission shall disburse the proceeds to affected customers pursuant to chapter 1-26. Any interest and other revenue earned on the proceeds shall accrue for the benefit of the affected customers.
Source: SL 2005, ch 248, § 1.
49-31-118. Wireless telephone number information in wireless directory assistance service database--Authorization for inclusion or sale.
No provider of mobile telecommunications service, or any direct or indirect affiliate or agent of a provider, may include the wireless telephone number information of a South Dakota subscriber in a wireless directory assistance service database or publish, sell, or otherwise disseminate the contents of a wireless directory assistance service database unless:
(1) The mobile telecommunications service provider provides a conspicuous separate notice to the subscriber informing the subscriber of the right not to be listed in a wireless directory assistance service; and
(2) The mobile telecommunications services provider obtains express prior authorization for listing from the subscriber, separate from any authorization obtained to provide such subscriber with mobile telecommunications service, or any calling plan or service associated with the mobile telecommunications service, and the authorization has not been subsequently withdrawn.
Source: SL 2005, ch 243, § 2.
49-31-119. Charge for exclusion of number from wireless directory assistance service database prohibited.
No person may charge a subscriber for making the choice to not be listed in a wireless directory assistance database or for removing the subscriber's mobile telecommunications service telephone number from a wireless directory assistance database at the subscriber's request.
Source: SL 2005, ch 243, § 3.
49-31-120. Definitions.
Terms used in §§ 49-31-120 to 49-31-126, inclusive, mean:
(1) "Communications provider," a provider that offers telecommunications services for a fee to the public, regardless of the facilities used, or a provider of IP-enabled voice service;
(2) "Confidential communications records information," information that relates to the quantity, technical configuration, type, destination, incoming calls, outgoing calls, text messaging, location, or amount of use of a service offered by a communications provider subscribed to by any customer of that communications provider which is made available to a communications provider solely by virtue of the relationship between the communications provider and the customer, or information contained in any bill related to the product or service offered by a communications provider and received by any customer of the communications provider;
(3) "IP-enabled voice service," the provision of real- time two-way voice communications offered to the public, transmitted through customer premises equipment using transmission control protocol/internet protocol (TCP/IP), or a successor protocol, for a fee, whether part of a bundle of services or separately, with two-way interconnection capability such that the service can originate traffic to, and terminate traffic from, a public switched telephone network.
Source: SL 2006, ch 238, § 1.
49-31-121. Obtaining confidential communications records without authorization from customer as misdemeanor.
No person may obtain, or attempt to obtain, confidential communications records information from a communications provider, without authorization from the customer to whom such confidential communications records information relates, by knowingly and intentionally:
(1) Making false or fraudulent statements or representations to an employee of a communications provider;
(2) Making false or fraudulent statements or representations to a customer of a communications provider;
(3) Providing false documentation to a communications provider knowing that the documentation is false;
(4) Wrongfully accessing customer accounts of a communications provider via the internet; or
(5) Receiving confidential communications records information knowing such information has been obtained by fraudulent, deceptive, or false means.
A violation of this section is a Class 1 misdemeanor.
Source: SL 2006, ch 238, § 2.
49-31-122. Selling confidential communications records without authorization from customer as felony.
No person may knowingly and intentionally sell, or attempt to sell, confidential communications records information from a communications provider without authorization from the customer to whom such confidential communications records information relates. A violation of this section is a Class 6 felony.
Source: SL 2006, ch 238, § 3.
49-31-123. Law enforcement permitted to obtain confidential communications records pursuant to subpoena or court order.
Sections 49-31-120 to 49-31-126, inclusive, may not be construed to prevent any action by a law enforcement agency, or any officer, employee, or agent of a law enforcement agency, to obtain confidential communications records information from a communications provider pursuant to a subpoena or court order.
Source: SL 2006, ch 238, § 4.
49-31-124. Communications provider permitted to obtain confidential communications records through agents.
Sections 49-31-120 to 49-31-126, inclusive, do not prohibit a communications provider, including any affiliate or subsidiary of a communications provider, from obtaining, using, disclosing, or permitting access to any confidential communications records information, either directly or indirectly through its agents as otherwise authorized by law.
Source: SL 2006, ch 238, § 5.
49-31-125. Communications provider permitted to obtain confidential communications records in connection with sale of business or migration of customer.
Sections 49-31-120 to 49-31-126, inclusive, do not prohibit a communications provider from obtaining, using, disclosing, or permitting access to any confidential communications records information in connection with the sale or transfer of all or part of its business, the purchase or acquisition of all or part of a business, or the migration of a customer from one communications provider to another.
Source: SL 2006, ch 238, § 6.
49-31-126. Civil action for violation--Double damages, costs, and attorney's fees.
Any customer or communications provider who claims to have been adversely affected by any act or practice declared to be unlawful by §§ 49-31-121 or 49-31-122 may bring a civil action against the person who violated §§ 49-31-121 or 49-31-122 for the recovery of twice the actual damages suffered or five hundred dollars, whichever is greater, as a result of the willful act or practice. In addition, the customer or communications provider may collect court costs and reasonable attorney fees expended by the customer to bring an action under this section.
Source: SL 2006, ch 238, § 7.
49-32-1
Right-of-way over or under public grounds--Control by public authorities--Acquisition of right-of-way.
49-32-2
Malicious destruction of equipment--Misdemeanor--Civil liability.
49-32-3
Moving structures across or under utility's lines--Notice to utility--Deposit for costs.
49-32-3.1
Required notice to telecommunications company--Planning meeting required.
49-32-3.2
"Wind collector system" defined.
49-32-4
Municipal regulation of movement of buildings or location of equipment.
49-32-5
Minimum height of telecommunications facilities or wires--Violation as petty
offense.
49-32-6
Damages not collectible for destruction of facilities or wires under minimum height.
49-32-7
Repealed.
49-32-8
Liability for negligence unaffected.
49-32-9
Repealed.
49-32-10
Overhead high voltage line safety--Definition of terms.
49-32-11
Activities bringing persons or equipment in proximity to high voltage lines
prohibited--Violation as misdemeanor.
49-32-12
Storage or maintenance of equipment or structure in proximity to high voltage line
prohibited--Violation as misdemeanor.
49-32-13
Warning signs to be posted on cranes and hoisting equipment--Violation as
misdemeanor--Separate offenses.
49-32-14
Notice to utility of necessary work in proximity to high voltage line--Protective
measures--Violation as misdemeanor.
49-32-15
Repealed.
49-32-16
Activities exempt from high voltage safety requirements.
49-32-17
Liability of violator.
49-32-18
Electric transmission line defined.
49-32-19
Incumbent electric transmission owner defined.
49-32-20
Right of incumbent electric transmission owner to construct and own electric
transmission line to electric facilities--Notice--Permit application.
49-32-1. Right-of-way over or under public grounds--Control by public authorities--Acquisition of right-of-way.
The owners of any telecommunications facilities operated in this state are granted the right-of-way over or under lands and real property belonging to the state and the right to use public grounds, streets, alleys and highways in this state, subject to the control by the proper authorities as to which grounds, streets, alleys or highways the lines run over or under, and placement of poles to support the wires. The right-of-way over or under real property in this chapter may be acquired in the same manner and by like proceedings as provided for railroad corporations.
Source: SDC 1939, § 52.1313; SL 1983, ch 341; SL 1987, ch 345, § 85.
49-32-2. Malicious destruction of equipment--Misdemeanor--Civil liability.
It is a Class 2 misdemeanor for any person to maliciously destroy, injure, disconnect, cut, break, ground, or in any manner interfere with telecommunications facilities, a pole, cable, or wire legally erected or strung, or with an underground conduit, subway, or cable or an electrical or other apparatus, appliance, instrument, or machinery of any kind used in the construction or operation of telecommunications facilities or electric plant, line or system used in producing, generating, or transmitting any electric light, heat, or power. In addition to the criminal penalty therefor, such person is liable in damages for any injuries to persons or property resulting therefrom.
Source: SDC 1939, § 13.4520; SL 1983, ch 15, § 126; SL 1987, ch 345, § 86.
49-32-3. Moving structures across or under utility's lines--Notice to utility--Deposit for costs.
Section 49-32-2 does not apply to the lawful moving of any structure along or across any public highway by a person who has used all necessary means to prevent injury to a utility's lines and who:
(1) Provides no less than forty-eight hours notice, which notice shall be calculated as two working days of the utility, of his intention to move a structure under or across a utility's lines to the nearest managing agent of the utility which owns the lines that must be moved;
(2) Informs the utility of the approximate time he intends to move the structure under or across the utility's lines; and
(3) Renders in advance of the move a reasonable deposit to the utility which shall equal the utility's estimated cost of its expenses in moving any lines.
The deposit shall include the utility's reasonable direct costs of all labor, materials and equipment, not including profit or common overhead costs, associated with accommodating the structure move. After the movement of the structure has been completed, the utility shall refund any deposit given in excess of the utility's direct cost incurred in moving its lines or the utility may bill the person moving the structure for the utility's direct cost incurred in excess of the deposit. The utility shall provide the person moving the structure with an itemized estimate when requiring a deposit and an itemized bill accounting for all direct costs after the move has been completed. No utility may charge any cost for monitoring the movement of a structure under its lines if it is not required to remove or lift any utility lines. No utility may require, as a condition precedent to the move, that a mover or the party owning the structure being moved sign a contract which adds terms regarding the movement of the structure inconsistent with this section.
Source: SDC 1939, § 13.4520; SL 1987, ch 345, § 87; SL 1992, ch 329.
49-32-3.1. Required notice to telecommunications company--Planning meeting required.
Any person, any political subdivision of this state, or any other public or private entity, however organized, that constructs, maintains, or operates a wind collector system for the purpose of producing electric energy shall, prior to the conclusion of planning for construction of any such project, notify in writing any telecommunications company having telecommunications facilities located within one mile of the proposed site, according to the records of the one-call notification system established by chapter 49-7A, of the intent to construct and the proposed location of the wind collector system. The telecommunications company shall contact the developer of the wind collector system at the address given in the notice required by this section within thirty days of the notice required by §§ 49-32-3.1 and 49-32-3.2 and request a planning meeting to be held within thirty days of the request with the developer of the wind collector system at a location mutually convenient to both parties. A planning meeting, once properly requested, shall be held and attended by knowledgeable representatives of the parties. If no request for a planning meeting is made, the developer is not required to meet with the telecommunications company. At the meeting the parties may discuss any concerns with the location or engineering design of the wind collector system, including the avoidance of inductive interference associated with the project.
Source: SL 2003, ch 239, § 2.
49-32-3.2. "Wind collector system" defined.
As used in §§ 49-32-3.1 and 49-32-3.2, the term, wind collector system, means all power lines and associated equipment located between the first substation and the wind turbines that collect electricity and transmit it from the wind turbines to the first substation.
Source: SL 2003, ch 239, § 1.
49-32-4. Municipal regulation of movement of buildings or location of equipment.
Nothing in § 49-32-2 or 49-32-3 may be construed to deprive municipalities of the right to regulate by ordinance the moving of buildings, or the location of telecommunications facilities or electric lines or wires within their respective limits.
Source: SDC 1939, § 13.4520; SL 1987, ch 345, § 88; SL 1992, ch 60, § 2.
49-32-5. Minimum height of telecommunications facilities or wires--Violation as petty offense.
It is a petty offense for a person owning or operating telecommunications facilities or electric lines, or any part of such facilities or lines in this state to intentionally extend telecommunications facilities or electric wires, any part of which is less than eighteen feet from the ground, over or across a public highway.
Source: SDC 1939, § 13.1624; SL 1983, ch 15, § 127; SL 1987, ch 345, § 89.
49-32-6. Damages not collectible for destruction of facilities or wires under minimum height.
No person owning or operating any telecommunications facilities or electric lines, or any part of such facilities or lines in this state, may collect damages from any person who cuts, breaks, removes, or otherwise destroys any such telecommunications facilities, or electric wires over or across a public highway if any part of the same is at any time less than eighteen feet from the ground.
Source: SDC 1939, § 13.1624; SL 1987, ch 345, § 90.
49-32-8. Liability for negligence unaffected.
Nothing contained in §§ 49-32-5 and 49-32-6 may be construed to exempt anyone owning or operating any telecommunications facilities, or electric lines in this state from liability for any damage or injury which anyone may sustain by reason of the faulty or negligent construction or maintenance of such telecommunications facilities, or electric lines.
Source: SDC 1939, § 13.1624; SL 1987, ch 345, § 91.
49-32-10. Overhead high voltage line safety--Definition of terms.
Terms as used in §§ 49-32-10 to 49-32-16, inclusive, unless the context otherwise requires, mean:
(1) "High voltage," a voltage in excess of seven hundred fifty volts between conductors or between any single conductor and the ground;
(2) "Overhead lines or overhead conductors," all bare or insulated electrical conductors installed above ground excepting those conductors that are de-energized and grounded or that are enclosed in iron pipe or other metal covering of equal strength.
Source: SL 1973, ch 288, § 1.
49-32-11. Activities bringing persons or equipment in proximity to high voltage lines prohibited--Violation as misdemeanor.
No person may, individually or through an agent or employee, and no person as an agent or employee of another person, may perform or permit another to perform any function or activity if it is probable that during the performance of such activity any person or any tool, equipment, machinery, or material engaged in performing work connected with such activity, will move to, or be placed in, a position within ten feet of any high voltage overhead electrical line or conductor. A violation of this section is a Class 2 misdemeanor.
Source: SL 1973, ch 288, § 2; SL 1983, ch 15, § 130; SL 2002, ch 215, § 1.
49-32-12. Storage or maintenance of equipment or structure in proximity to high voltage line prohibited--Violation as misdemeanor.
No person may, individually or through an agent or employee, and no person as an agent or employee of another person, may store, operate, erect, maintain, move or transport any tools, machinery, equipment, supplies, materials, apparatus, house or other building, or any part thereof, within six feet of any high voltage overhead conductor. A violation of this section is a Class 2 misdemeanor.
Source: SL 1973, ch 288, § 3; SL 1983, ch 15, § 131.
49-32-13. Warning signs to be posted on cranes and hoisting equipment--Violation as misdemeanor--Separate offenses.
No person may, individually or through an agent or employee or as an agent or employee, operate a crane, derrick, power shovel, drilling rig, hoisting equipment or similar apparatus, any part of which is capable of lateral or swinging motion, unless there is posted and maintained in plain view of its operator, a durable warning sign legible at twelve feet, reading:
"Unlawful to operate this equipment within six feet of high voltage lines."
A violation of this section is a Class 2 misdemeanor. Each day's failure to post or maintain such signs shall constitute a separate violation.
Source: SL 1973, ch 288, § 4; SL 1983, ch 15, § 132.
49-32-14. Notice to utility of necessary work in proximity to high voltage line--Protective measures--Violation as misdemeanor.
If a person desires to carry on a function, activity, work or operation in closer proximity to a high voltage line or conductor than is permitted by §§ 49-32-11 and 49-32-12, or in such proximity that a function could reasonably be expected to come within closer proximity than permitted by said sections, the person responsible for the work to be done shall promptly notify the operator of the high voltage conductors of the work to be performed and make appropriate arrangements with the operator of the high voltage conductors for temporary mechanical barriers, temporary de-energization and grounding of the conductors, or temporary raising of the conductors before proceeding with any work which would impair the clearances required by §§ 49-32-11 and 49-32-12. The operator shall provide the necessary clearance within a reasonable time after notification.
A violation of this section by the person responsible for the work or by the operator of the high voltage lines is a Class 2 misdemeanor.
Source: SL 1973, ch 288, § 5; SL 1983, ch 15, § 133.
49-32-16. Activities exempt from high voltage safety requirements.
Sections 49-32-10 to 49-32-14, inclusive, shall not be construed as applying to, nor shall they apply to:
(1) Construction, reconstruction, operation, or maintenance of any high voltage overhead conductor, supporting structure or appurtenances for the support or operation of a high voltage conductor by persons authorized by the owner or operator; nor
(2) Work being done on telephone or communication circuits or their supporting structures; nor
(3) The operation or maintenance of any equipment traveling or moving upon fixed rails.
Source: SL 1973, ch 288, § 7.
49-32-17. Liability of violator.
If a violation of this chapter results in physical or electrical contact with any high voltage line, the violator is liable to the owner or operator of such high voltage line for all damage to such facilities and for any liability incurred by such owner or operator as a result of any such contact.
Source: SL 1987, ch 353.
49-32-18. Electric transmission line defined.
For the purposes of §§ 49-32-19 and 49-32-20, the term, electric transmission line, means any line connecting to existing electric transmission network facilities for conducting electric energy at a design voltage of one hundred fifteen kilovolts or greater phase to phase, other than a line solely for connecting an electric generation facility to facilities owned by an electric utility.
Source: SL 2011, ch 208, § 1.
49-32-19. Incumbent electric transmission owner defined.
For the purposes of § 49-32-20, the term, incumbent electric transmission owner, means an electric utility or public utility furnishing electric service in this state or wholesale rural electric cooperative whose owners furnish electric service in this state or a municipal power agency or a consumers power district organized pursuant to chapter 49-35.
Source: SL 2011, ch 208, § 2.
49-32-20. Right of incumbent electric transmission owner to construct and own electric transmission line to electric facilities--Notice--Permit application.
Any incumbent electric transmission owner may construct, own, and maintain an electric transmission line that connects to facilities owned by the incumbent electric transmission owner. The right to construct, own, and maintain an electric transmission line that connects to facilities owned by two or more incumbent electric transmission owners belongs individually and proportionally to each incumbent electric transmission owner, unless otherwise agreed in writing. If an electric transmission line has been approved for construction in a federally registered planning authority transmission plan, the incumbent electric transmission owner may give notice to the commission, in writing, within ninety days of approval, of its intent to construct, own, and maintain the electric transmission line. If no notice is provided, the incumbent electric transmission owner shall surrender its first right to construct, own, and maintain the electric transmission line. Within eighteen months after the notice, the incumbent electric transmission owner shall file an application for a permit in accordance with chapter 49-41B.
Source: SL 2011, ch 208, § 3.
49-32A-1
Definition of terms.
49-32A-2
Purpose of translator district.
49-32A-3
Areas includable in translator districts.
49-32A-4
Establishment of translator district by county ordinance.
49-32A-5
Feasibility study by professional engineering consultant--Scope of study.
49-32A-6
Public hearings on feasibility study--District boundaries--Election on district--Order creating district--Filing.
49-32A-7
Initial board of trustees for district--Number--Qualifications--Terms of office.
49-32A-8
Appointment of successor trustees--Term of office--Filling of vacancies.
49-32A-9
Meetings of district trustees--Regular time and place--Notice of change.
49-32A-10
Trustees not compensated--Expenses.
49-32A-11 to 49-32A-13. Repealed.
49-32A-14
Preparation of annual budget--Presentation to county commissioners--Appropriations.
49-32A-15
District treasurer--Separate fund--Disbursements on warrants.
49-32A-16
Television services provided by translator districts--Cable service prohibited.
49-32A-17
Acquisition and operation of electronic transmission and relay systems--Land and
property acquisition--Compensation of property owners.
49-32A-18
Contracts with public agencies--Employment of personnel.
49-32A-19
Permits and licenses held by district.
49-32A-20
Annexation of contiguous territory--Procedure.
49-32A-21
Dissolution of district--Distribution of assets.
49-32A-1. Definition of terms.
Terms used in this chapter, unless the context otherwise requires, mean:
(1) "Registered professional engineer," a person with a degree in radio electronics entitling him to the use of the title of professional engineer and whose credentials are a matter of record with the Federal Communications Commission in Washington, D.C. and who is actively pursuing a practice of consulting as a professional engineer;
(2) "Service unit," any structure inhabited for dwelling purposes and shall include each home, each apartment within a structure, and each motel or hotel structure shall be one unit, and shall include any establishment which sells, rents, leases to or maintains on the premise for the enjoyment of their customers electronic equipment which receives translator signals; and
(3) "Translator," any facility within this state which is operated to receive and amplify the signals broadcast by one or more television stations and redistribute the signals by appropriate broadcasting means but shall not include redistribution of signals by wire or cable.
Source: SL 1976, ch 76, § 1.
49-32A-2. Purpose of translator district.
The purpose of a translator district shall be to serve the public interest, convenience, and necessity in the construction, maintenance and operation of translator stations and any system necessary thereto by appropriate electronic means for television program distribution, but the purposes are not meant to include the construction or operation of community antenna systems, commonly known and referred to as cable TV systems.
Source: SL 1976, ch 76, § 2.
49-32A-3. Areas includable in translator districts.
Any area of the state may organize as a translator district for the performance of functions provided for in this chapter. A translator district may include a part or all of any county or may include areas in more than one county and may include any municipality located within the county or counties.
Source: SL 1976, ch 76, § 3.
49-32A-4. Establishment of translator district by county ordinance.
A board of county commissioners may by ordinance establish a translator district. The provisions of chapter 7-18A shall govern such procedure.
Source: SL 1976, ch 76, § 4.
49-32A-5. Feasibility study by professional engineering consultant--Scope of study.
Before any further action is taken the board of county commissioners shall order a feasibility study to be made by a professional engineering consultant as defined in this chapter. The feasibility study shall include recommendations, including but not limited to the type and amount of equipment necessary, the area that may be served adequately, estimated predictions of necessary maintenance requirements for maximum quality video reception and all costs relating thereto. This feasibility study shall also include alternative coverage area proposals and cost estimates relating thereto.
Source: SL 1976, ch 76, § 4.
49-32A-6. Public hearings on feasibility study--District boundaries--Election on district--Order creating district--Filing.
The commissioners shall present the feasibility study to the general public residing in the proposed coverage area by public hearings. If sufficient public interest and support is indicated at the public hearings, the board of county commissioners shall establish the boundaries of the TV translator district and call for an election of the electorates therein. If the board of county commissioners passes an ordinance creating the district, they shall name the district "Translator District" and file a copy of the order creating the district, if only one county is included therein, with the county auditor and if portions of more than one county are included in the district a copy of the order shall be filed in each county and with the secretary of state.
Source: SL 1976, ch 76, § 4.
49-32A-7. Initial board of trustees for district--Number--Qualifications--Terms of office.
The board of county commissioners, upon the creation of the district, and as a part of the order creating the district, shall appoint a board of no less than three nor more than five trustees to administer the affairs of the district. Each of the trustees shall be a resident of the district. The trustees so appointed upon creation of such district shall be appointed for staggered terms of one, two and three years. If more than one county is involved, one of the trustees shall be appointed from the county having the smallest population based on the most recent federal decennial census, and such trustee shall be given the three-year term.
Source: SL 1976, ch 76, § 5; SL 1979, ch 315, § 1.
49-32A-8. Appointment of successor trustees--Term of office--Filling of vacancies.
Trustees appointed pursuant to § 49-32A-7 shall hold office for the term of their respective appointment or until their successors are appointed and qualified; at the end of the respective terms of the trustees, the board of county commissioners shall appoint a new trustee for a three-year term, and in case of a vacancy by death, resignation, removal from the district or otherwise a trustee shall be appointed by the board of county commissioners to fill such vacancy to the end of the term of such trustee.
Source: SL 1976, ch 76, § 5.
49-32A-9. Meetings of district trustees--Regular time and place--Notice of change.
The board of trustees shall meet once a month at a regular time and place to transact the business of the district, the time and place to be fixed by the trustees and any change in the time and place of meetings shall be given by publication of notice in a newspaper most likely to give notice to the taxpayers within such district.
Source: SL 1976, ch 76, § 12.
49-32A-10. Trustees not compensated--Expenses.
The board of trustees of the district shall serve without compensation but shall be reimbursed for reasonable expenses incurred in the operation of the translator district.
Source: SL 1976, ch 76, § 10.
49-32A-14. Preparation of annual budget--Presentation to county commissioners--Appropriations.
The board of trustees shall prepare a budget for the expenses for the next year, which budget shall be presented by July first to the boards of county commissioners of the counties in the television district. The board of county commissioners of each county in the district shall appropriate funds required by the budget from the county general funds in the same proportion that the population of each county is to the total district population.
Source: SL 1976, ch 76, § 7; SL 1979, ch 315, § 5.
49-32A-15. District treasurer--Separate fund--Disbursements on warrants.
The treasurer of the county with the largest population in the district shall be the treasurer for the district and hold the funds appropriated by that county and funds appropriated by any other county shall be forwarded to him and deposited in a separate fund to be disbursed by him upon warrants drawn by the trustees, at least two of whom shall sign any warrant for the disbursement of the funds by the county treasurer.
Source: SL 1976, ch 76, § 8; SL 1979, ch 315, § 6.
49-32A-16. Television services provided by translator districts--Cable service prohibited.
A translator district organized under this chapter, acting through its board of trustees may perform all the acts and take all the necessary steps to provide television services within the area in order that all persons within the service area shall be supplied by means of an appropriate electrical or electronic system for television program distribution, but may not perform any acts or take any steps to construct or operate community antenna systems, commonly known and referred to as cable TV systems; the authorized system to provide such flexibility as to permit improvements in technical quality.
Source: SL 1976, ch 76, § 9.
49-32A-17. Acquisition and operation of electronic transmission and relay systems--Land and property acquisition--Compensation of property owners.
If necessary in the furtherance of the objects of this chapter, a translator district organized under this chapter may acquire, build, construct, repair, own, maintain and operate any necessary stations transmitting simultaneous signals intended to be received by the general public, relay stations, pick-up stations, or any other electrical or electronic system necessary. It may acquire by gift, devise, bequest, lease, purchase, or eminent domain real and personal property, tangible or intangible, including lands, rights of way and easements, necessary or convenient for its purposes. It may make contracts to compensate any owner of land or other property for the use of such property for the purposes of this chapter.
Source: SL 1976, ch 76, § 9.
49-32A-18. Contracts with public agencies--Employment of personnel.
A translator district organized under this chapter may make contracts with the United States, or any state, municipality or any department or agency of those entities for carrying out the general purposes for which the district is formed. It may make contracts of any lawful nature, including labor contracts or those for employees' benefits, employ engineers, laboratory personnel, attorneys, other technical or professional assistants, and any other assistants or employees necessary to carry out the provisions of this chapter.
Source: SL 1976, ch 76, § 9.
49-32A-19. Permits and licenses held by district.
A translator district organized under this chapter may apply for, accept, and be the holder of any permit or license issued by or required under federal or state law.
Source: SL 1976, ch 76, § 9; SL 1979, ch 315, § 7.
49-32A-20. Annexation of contiguous territory--Procedure.
The board of county commissioners may annex contiguous territory by ordinance in accordance with the procedures outlined in chapter 1-24.
Source: SL 1976, ch 76, § 15.
49-32A-21. Dissolution of district--Distribution of assets.
If a board of county commissioners finds, following a public hearing or hearings, that the continued existence of a television translator district would no longer serve the purposes of this chapter, it may by resolution order the district dissolved. In the case of a television translator district that includes more than one county, each board of county commissioners must order the district dissolved by resolution. All properties and money remaining after the satisfaction of all debts and obligations of the abandoned district shall be deposited to the credit of the general fund of the county. If the abandoned district embraced areas in more than one county, properties and moneys remaining after the satisfaction of all debts and obligations of the abandoned district shall be deposited to the credit of the general funds of the relevant counties in proportion to the population in each county that was served by the district.
Source: SL 1976, ch 76, § 14; SL 1979, ch 315, § 8; SL 2018, ch 266, § 1.
CHAPTER 49-33
ELECTRIC, STREET RAILWAY AND GAS CORPORATIONS
49-33-1 Incorporation of company--Articles of incorporation--Perpetual existence--Reinstatement of articles as amended.
49-33-2 Provisions applicable to gas companies.
49-33-3 Affidavit of incorporators--Contents--Filing with secretary of state--Fee of secretary.
49-33-4 Certificate of incorporation--Corporate name--Rights conferred by certificate.
49-33-5 Powers of corporation--Operation of business.
49-33-5.1 Powers of corporation--Business corporation powers.
49-33-6 Powers of corporation--Survey of proposed route--Entry upon property.
49-33-7 Powers of corporation--Buildings and accessory facilities--Contracts with municipalities.
49-33-8 Powers of corporation--Holding property.
49-33-9 Powers of corporation--Purchase of property--Disposition of unneeded property.
49-33-10 Powers of corporation--Right-of-way--Condemnation of land--Alteration of roadways--Expenses.
49-33-11 Powers of corporation--Connection with other facilities--Use of facilities--Accessory facilities.
49-33-12 Powers of corporation--Rules and regulations--Rates--Discrimination prohibited.
49-33-13 Powers of corporation--Extraterritorial powers.
49-33-14 Board of directors--Election and term of office--Voting for directors--Vacancies.
49-33-14.1 Bylaws--Adoption, amendment or repeal by board.
49-33-14.2 Annual and special meetings of stockholders--Quorum--Notice.
49-33-15 Director as stockholder--Minimum stock ownership.
49-33-16 49-33-16. Repealed by SL 1986, ch 396, § 5.
49-33-17 Officers of corporation.
49-33-18 Books and records--Exhibition to stockholders--Right to examine by certain stockholders.
49-33-19 Capital stock subscription.
49-33-20 Failure to pay for subscription--Collection by directors--Forfeiture of amounts previously paid.
49-33-21 Transfer of stock--Stock deemed personal property.
49-33-22 Increase in capital stock and amendment of articles of incorporation--Majority vote or greater required.
49-33-23 Issuance of preferred stock.
49-33-24 Series of preferred stock--Characteristics of stock--Dividends--Voting powers.
49-33-25 Certificate of issuance of preferred stock--Filing with secretary of state.
49-33-26 Increasing or decreasing preferred stock--Resolution of directors.
49-33-27 Liability of stockholders--Stock held by fiduciary or as collateral security.
49-33-28 Holding of stock in other corporations.
49-33-29 49-33-29. Repealed by SL 1986, ch 396, § 10.
49-33-30 Consolidation or merger with other corporations--Approval of plan.
49-33-31 Articles of incorporation requiring greater vote control.
49-33-1. Incorporation of company--Articles of incorporation--Perpetual existence--Reinstatement of articles as amended.
Any number of persons, not less than three, may form a corporation for the purpose of constructing, maintaining and operating a street railway or railways or for the purpose of generating, transmitting or distributing electricity, the same to be sold to or used by the public for heat, light or power, by making and executing articles of incorporation in compliance with §§ 47-1A-202 to 47-1A-202.3, inclusive, and §§ 47-1A-627 to 47-1A-627.2, inclusive. Such corporation shall exist perpetually unless otherwise stated in its articles of incorporation and shall have the power to engage in other businesses set forth therein.
Any corporation organized under chapter 49-33 may at any time restate its articles of incorporation as theretofore amended by a resolution adopted by its board of directors. The secretary of state shall accept the restated articles of incorporation for filing upon receipt of a certified copy of said resolution.
Source: SDC 1939, § 52.1501; SL 1947, ch 236, § 1; SL 1986, ch 396, § 1; SL 2005, ch 202, § 9.
49-33-2. Provisions applicable to gas companies.
All of the provisions of this chapter and chapter 49-34 shall apply to corporations organized for the purpose of manufacturing, producing, supplying, or transporting gas, natural or artificial, and such corporation shall possess and may exercise and enjoy, as to organization, control, management, and operation, all of the privileges, rights, powers, and franchises possessed by electric light and power corporations, so far as they are consistent therewith.
Source: SDC 1939, § 52.1801.
49-33-3. Affidavit of incorporators--Contents--Filing with secretary of state--Fee of secretary.
There shall be annexed to the articles of incorporation described by § 49-33-1 an affidavit, signed by at least three of the incorporators therein, setting forth that the signatures thereto are genuine and that it is intended in good faith to construct or maintain and operate the street railway or railways or electric lighting and power plants therein referred to, and thereupon such articles shall be filed in the office of the secretary of state, who shall endorse thereon the date thereof and record the same in a book to be kept by him for that purpose. The secretary of state shall be entitled to the same fees provided by law for the filing and recording of articles of incorporation in this state; like fees shall be paid for any amendment at any time of the original articles.
Source: SDC 1939, § 52.1501 (5); SL 1947, ch 236, § 1; SDC Supp 1960, § 52.1501 (6).
49-33-4. Certificate of incorporation--Corporate name--Rights conferred by certificate.
Upon the filing and recording of articles of incorporation pursuant to § 49-33-3 a certificate shall issue to such corporation under the seal of this state, signed by the secretary of state, granting unto such incorporators, their associates, successors, and assigns, full power and authority by and under their corporate name to exercise the powers and privileges of a corporation for the purpose stated in § 49-33-1 and in accordance with their articles of incorporation and the laws of this state.
Source: SDC 1939, § 52.1501 (5); SL 1947, ch 236, § 1; SDC Supp 1960, § 52.1501 (6).
49-33-5. Powers of corporation--Operation of business.
Upon the issue of a certificate pursuant to § 49-33-4 the subscribers to such articles of incorporation, and all persons who shall thereafter become stockholders in such corporation, shall be a corporation by the name of and may engage in the businesses specified in such articles and shall possess all the powers and be subject to all provisions of law relating to street railways and electric light and power companies and the provisions of this chapter and chapter 49-34 applicable thereto. And the rights and powers provided in said chapters with respect to street railways and electric companies shall be construed to extend and apply to the businesses engaged in by such corporation pursuant to the provisions hereof with respect to rights of way, acquisition and use of property, franchises, extensions of service and consolidations as the same relate to and are consistent with said businesses.
Source: SDC 1939, § 52.1502; SL 1947, ch 236, § 2.
49-33-5.1. Powers of corporation--Business corporation powers.
In addition to all provisions and powers in chapters 49-33 and 49-34 that are applicable to corporations organized under those chapters, all provisions and powers set forth in the South Dakota Business Corporation Act, §§ 47-1A-101 to 47-1A-863.3, inclusive, §§ 47-1A-1401 to 47-1A-1440, inclusive, and §§ 47-1A-1601 to 47-1A-1703.1, inclusive, applicable to domestic corporations are also applicable to corporations that have been or will be organized under chapters 49-33 and 49-34 except if in conflict with the express provisions of chapters 49-33 and 49-34.
Source: SL 1981, ch 337; SL 2005, ch 202, § 12; SL 2021, ch 200, § 3.
49-33-6. Powers of corporation--Survey of proposed route--Entry upon property.
Every corporation organized under this chapter shall have power to cause such examinations and surveys to be made as may be necessary to the selection of the most advantageous route for its proposed street railroad, electric light, or power line, and for such purpose to enter, by its agents, officers, and servants, upon the lands or waters of any person; subject, however, to responsibility for all damage done to such property by such entry.
Source: SDC 1939, § 52.1509 (1).
49-33-7. Powers of corporation--Buildings and accessory facilities--Contracts with municipalities.
Every corporation organized under this chapter shall have power to erect and maintain such buildings, powerhouses, plants, poles, substations, wires, trolleys, and appliances as may be necessary for the transmission of electric power and use the same to operate its street railway, electric light, or power line, and to contract with any person or corporation for the furnishing to such person or corporation of electric light, heat, or power; to contract with any municipality, or county for the lighting of its streets, highways, and public buildings, and for furnishing power, and to contract with any municipal corporation for the furnishing of its inhabitants with electric light, heat, and power.
Source: SDC 1939, § 52.1509 (2); SL 1992, ch 60, § 2.
49-33-8. Powers of corporation--Holding property.
Every corporation organized under this chapter shall have power to take and hold such voluntary grants of real and other property as may be made to it to aid in the construction, maintenance, and accommodation of its railways, power or lighting plants, but the real property received by voluntary grant shall be held and used for the purpose of such grant only.
Source: SDC 1939, § 52.1509 (3).
49-33-9. Powers of corporation--Purchase of property--Disposition of unneeded property.
Every corporation organized under this chapter shall have power to acquire by purchase or under the provisions of chapter 49-34 all such real and other property as may be necessary for the operation of its railway, power and lighting plants and grounds and accommodation reasonably necessary to accomplish the objects of its incorporation; to hold and use the same; and to lease, sell, or otherwise dispose of any part or parcel when not required and no longer necessary for its use.
Source: SDC 1939, § 52.1509 (4).
49-33-10. Powers of corporation--Right-of-way--Condemnation of land--Alteration of roadways--Expenses.
Every corporation organized under this chapter shall have power to lay out its road not exceeding fifty feet in width and construct the same, and for such purpose to obtain gravel or other material for its cuttings and embankments; to take so much land as may be necessary for the construction, operation, and safety of its road, electric light or power line, including right-of-way and water for ditches, canals, or flumes by which to generate electricity therefor; to construct its road, electric light or power line along or across any stream of water, river, watercourse, highway, street, or turnpike, which it may touch or intersect; to carry any highway, street, or road which it shall cross over or under its track as may be most expedient for the public safety and welfare; to change the course of any highway, street, or road when made necessary or desirable to secure a more easy descent or ascent by reason of any cut or embankment made in the construction of its railroad and to take so much land as shall be necessary therefor; provided that such change in the course of any street, road, or highway shall be made at the expense of such corporation and without expense to the municipality wherein such change is made.
Source: SDC 1939, § 52.1509 (5); SL 1992, ch 60, § 2.
49-33-11. Powers of corporation--Connection with other facilities--Use of facilities--Accessory facilities.
Every corporation organized under this chapter shall have power to cross, join, or unite its railroad with any street or other railroad now or hereafter constructed and to contract with such railroad for the transportation of its cars over its lines; to take and convey persons or property over its railroad by electrical or mechanical power, and to receive compensation therefor; and to erect and maintain all necessary and convenient buildings, station powerhouses, trolley poles, repair shops, carbarns, wires, fixtures, and machinery for the accommodation and use of its passengers, freight, and other business and the transmission of electric power.
Source: SDC 1939, § 52.1509 (6).
49-33-12. Powers of corporation--Rules and regulations--Rates--Discrimination prohibited.
Every corporation organized under this chapter shall have power to regulate the time and manner in which passengers and property shall be transported and the compensation to be paid therefor, but in so doing no preference, advantage, or monopoly shall be given to any person, company, or corporation doing business with it or doing business at more than one point along the line of its road.
Source: SDC 1939, § 52.1509 (7).
49-33-13. Powers of corporation--Extraterritorial powers.
Every corporation organized under this chapter shall have power to exercise all its rights, franchises, and privileges in any other state of the United States and to accept from any other state into which its railroad, electric light, or power line is extended additional and other powers and privileges applicable to the business of such corporation in such territory.
Source: SDC 1939, § 52.1509 (8).
49-33-14. Board of directors--Election and term of office--Voting for directors--Vacancies.
There shall be a board of not less than three directors, and such greater number as the bylaws shall designate, to manage the business and affairs of such corporation, who shall be elected at such time, in such manner and for such terms as shall be prescribed by its bylaws and shall hold their office until their respective successors shall be chosen. In the election of directors and at all corporate meetings, each stockholder is entitled to one vote in person or by proxy for each share of stock owned by him. Each stockholder entitled to vote has the right to multiply the number of votes to which such stockholder may be entitled by the number of directors to be elected at the meeting at which the votes are to be cast and cast all of such votes for one candidate, or distribute them among two or more candidates as the stockholder prefers. Vacancies in the board of directors shall be filled in the manner prescribed by the bylaws.
Source: SDC 1939, § 52.1504; SL 1986, ch 396, § 4.
49-33-14.1. Bylaws--Adoption, amendment or repeal by board.
The bylaws of a corporation organized under chapter 49-33 shall be initially adopted and may be altered, amended or repealed thereafter by the board of directors.
Source: SL 1986, ch 396, § 2.
49-33-14.2. Annual and special meetings of stockholders--Quorum--Notice.
All annual and special meetings of stockholders of a corporation organized under chapter 49-33 shall be called by the board of directors. The quorum required for such meetings shall be set forth in the bylaws of the corporation. Written notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten nor more than fifty days before the date of the meeting, either personally or by mail, or by or at the direction of the president or secretary, to each stockholder of record, as of the record date, entitled to vote at such meeting. However, in order to comply with S.D. Const., Art. XVII, § 8, if at an annual or special stockholders' meeting, the stockholders are to vote, either as a single matter or as one matter among another or more matters, on an increase in the stock or indebtedness of the corporation, the notice of such meeting shall be delivered, personally or by mail, not less than sixty nor more than eighty days before the date of the meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the stockholder at his address as it appears on the stock transfer books of the corporation, with postage thereon prepaid.
Source: SL 1986, ch 396, § 3.
49-33-15. Director as stockholder--Minimum stock ownership.
No person shall be a director of a corporation organized under this chapter unless he is a stockholder thereof owning absolutely in his own right, or as trustee or personal representative, at least ten shares of the capital stock of such corporation and must be duly qualified to vote such stock at the election at which he shall be chosen.
Source: SDC 1939, § 52.1504.
49-33-17. Officers of corporation.
The directors shall appoint a president and vice-president; they may also appoint a secretary, treasurer, and such other officers or agents as are prescribed by the bylaws.
Source: SDC 1939, § 52.1505; SL 1986, ch 396, § 6.
49-33-18. Books and records--Exhibition to stockholders--Right to examine by certain stockholders.
The books and records of account and minutes of a corporation organized under this chapter shall be exhibited to its stockholders at every stockholders' meeting, if a majority of those present require it. Any person or group of persons who are the holders of record of at least ten percent of all the outstanding shares of such corporation, upon written demand stating the purpose thereof, have the right to examine, in person, or by agent or attorney, at any reasonable time or times, for any proper corporate purpose, its books and records of account, minutes and record of shareholders and to make extracts therefrom.
Source: SDC 1939, § 52.1504; SL 1986, ch 396, § 7.
49-33-19. Capital stock subscription.
When a certificate is issued pursuant to § 49-33-4, the directors of such corporation may, in case the whole of the capital stock shall not have been before subscribed, open books of subscription to fill up the capital stock at such places and upon such notice as they may deem expedient, and may from time to time receive subscriptions until the whole of the capital stock is subscribed.
Source: SDC 1939, § 52.1503.
49-33-20. Failure to pay for subscription--Collection by directors--Forfeiture of amounts previously paid.
The directors may require any amounts unpaid upon the capital stock to be paid in such manner, at such times and in such installments as they may deem proper. If any stockholder shall neglect to pay any installment of such capital stock as required by a resolution of the board of directors and such board shall have caused a notice to be served upon such stockholder personally, or by depositing the same in the post office directed to such stockholder at his usual and nearest post-office address at least thirty days before the day on which such payment is required to be made, stating that he is required to make such payment at the time and place specified in such notice and that, if he fails to do so, such stock and all payments previously made thereon will be forfeited to the use of the corporation, such board of directors may, by resolution, declare such stock and all payments forfeited for the use of the corporation and the same shall thereupon be forfeited and the title thereto shall revest in the corporation, or such board may, at its option, enforce payment of the installments due on such shares of the capital stock in the manner provided by law.
Source: SDC 1939, § 52.1506.
49-33-21. Transfer of stock--Stock deemed personal property.
The stock of every corporation organized under this chapter is deemed personal property and is transferable in the manner prescribed by its bylaws, and subject to the provisions of §§ 57A-8-301 to 57A-8-307, inclusive and 57A-8-401 to 57A-8-407, inclusive, but no share is transferable until all previous calls and assessments on the share have been fully paid.
Source: SDC 1939, § 52.1507; SL 2021, ch 200, § 4.
49-33-22. Increase in capital stock and amendment of articles of incorporation--Majority vote or greater required.
The capital stock of any corporation organized under this chapter may be increased to such an amount as may, by its stockholders, be deemed necessary, and the articles of incorporation may be amended by the vote of the owners of a majority of its capital stock, or such greater proportions of the shares of capital stock, or of any class or series thereof, as provided in the corporation's articles of incorporation, at any annual meeting or at any special meeting called for that purpose.
Source: SDC 1939, § 52.1508; SL 1986, ch 396, § 8.
49-33-23. Issuance of preferred stock.
Notwithstanding the provisions of §§ 47-1A-601 to 47-1A-640.5, inclusive, a corporation, now or hereafter formed under the provisions of this chapter may provide in its articles of incorporation, or in any amendment thereof, for the issuance of preferred stock in series and authorize the board of directors (within the limits, if any, prescribed in such articles of incorporation or amendment) to fix certain or all of the characteristics and rights thereof.
Source: SDC 1939, § 52.1518 as enacted by SL 1949, ch 211; SL 2005, ch 202, § 10.
49-33-24. Series of preferred stock--Characteristics of stock--Dividends--Voting powers.
Upon the adoption or amendment of the articles of incorporation to include the provisions authorized by § 49-33-23, the board of directors may cause such preferred stock to be issued in one or more series, in such amounts and with such terms and characteristics, (within such prescribed limits, if any), as may be set forth in a resolution or resolutions of the board of directors adopted prior to the issuance of shares of the respective series. Such terms and characteristics may include, within such limits, variations and provisions as to distinctive serial designations (including a change or variation in the existing designation of the authorized but unissued shares of any class of preferred stock), as to the rate or rates of dividends payable thereon, as to the times of payment of and the dates from which such dividends shall be cumulative, as to the prices and terms upon which the same may be redeemed, as to the amount or amounts which shall be paid to the holders thereof in case of voluntary or involuntary dissolution or distribution of assets, as to voting powers, if any, and as to the other characteristics of and any restrictive or other provision relating to such series.
Source: SDC 1939, § 52.1518 as enacted by SL 1949, ch 211.
49-33-25. Certificate of issuance of preferred stock--Filing with secretary of state.
Upon the creation of any series of preferred stock pursuant to § 49-33-24 and before the issuance of any shares thereof, the number of shares of such series and the designation, characteristics, and terms thereof provided for in such resolution or resolutions shall be set forth in a certificate made by the corporation, signed by its president or vice-president under the corporate seal, attested by its secretary or an assistant secretary and acknowledged or proved, as in the case of deeds of real estate, which certificate shall be filed in the Office of the Secretary of State.
Source: SDC 1939, § 52.1518 as enacted by SL 1949, ch 211.
49-33-26. Increasing or decreasing preferred stock--Resolution of directors.
Unless otherwise provided in any resolution or resolutions pursuant to § 49-33-24 the number of shares of stock of any series set forth in such resolution or resolutions may be increased or decreased (but not below the number of shares thereof then outstanding) by a certificate made and filed as provided by § 49-33-25 setting forth a statement that a specified increase or decrease therein has been authorized and directed by resolution or resolutions likewise adopted by the board of directors; and in case the number of such shares shall be so decreased the number of shares so specified in said certificate shall resume the status which they had prior to the adoption of the first resolution or resolutions.
Source: SDC 1939, § 52.1518 as enacted by SL 1949, ch 211.
49-33-27. Liability of stockholders--Stock held by fiduciary or as collateral security.
No person holding stock in any corporation organized under this chapter as personal representative, conservator, or trustee, and no person holding such stock as collateral security, is liable as stockholder of such corporation for any calls or installments on any partially paid-up stock thereof; but the person pledging such stock shall be considered as holding the same and is liable as a stockholder accordingly; and the estate and funds in the hands of such personal representative, conservator, or trustee is liable to the same extent as the decedent, ward, or other person interested would have been, if living or competent to act and holding stock in his own name.
Source: SDC 1939, § 52.1507; SL 1993, ch 213, § 248; SL 1995, ch 167, § 188.
49-33-28. Holding of stock in other corporations.
Any corporation organized under this chapter may purchase, take, and hold all or any part of the property, rights, privileges, and franchises of any other corporation, foreign or domestic, organized for the purpose of operating any street railway by electric power or for the purpose of manufacturing, creating, or generating electricity for power, light, heat, or any other purpose, and may take and hold stock and in its corporate capacity become a subscriber to the capital stock of any other corporation or corporations.
Source: SDC 1939, § 52.1512; SL 1986, ch 396, § 9.
49-33-30. Consolidation or merger with other corporations--Approval of plan.
Any corporation organized under chapter 49-33 may merge with any one or more other corporations, domestic or foreign, into a single corporation, which may be any one of the constituent corporations, or may consolidate with any such corporations into a new corporation formed by the consolidation. Each of the constituent corporations shall enter into a plan of merger or consolidation. Such plan shall, in the case of each corporation organized under this chapter, first be approved by the board of directors of each such corporation and shall thereafter be submitted to and approved by each such corporation by a vote of the stockholders holding a majority, or such greater percentage as is provided in its articles of incorporation, of each class of the corporation's outstanding stock entitled to vote thereon under the corporation's articles of incorporation at an annual or special meeting of stockholders called by the board of directors for the purpose of acting on the plan. Such consolidation or merger shall otherwise be in conformance with and enjoy the benefits of §§ 47-1A-1101 to 47-1A-1108, inclusive.
Source: SL 1986, ch 396, § 11; SL 2005, ch 202, § 11.
49-33-31. Articles of incorporation requiring greater vote control.
If, with respect to any action to be taken by the board of directors or by the stockholders of a corporation, the articles of incorporation require the vote or concurrence of the holders of a greater proportion of the shares, or of any class or series thereof, than required by any section of this title, the provision of the articles of incorporation requiring such greater vote shall not be altered, amended or repealed except by such greater vote.
Source: SL 1986, ch 396, § 12.
CHAPTER 49-34
ELECTRIC, GAS, WATER, HEATING, REFRIGERATION AND STREET RAILWAYS FACILITIES AND SERVICE
49-34-1 Use of public way for transmission facilities.
49-34-2 Construction standards--Obstruction of travel--Repairs.
49-34-3 Contracts for central heating.
49-34-4 Acquiring property for accessory facilities--Procedure for condemnation.
49-34-5 Condemnation of parks or boulevards prohibited.
49-34-6 Extension of facilities--Branch lines--Designation of route--Filing with secretary of state--Aid authorized.
49-34-7 Branches to commercial facilities--Condemnation of right-of-way--Maximum length of branch.
49-34-8 Extension of foreign facilities through state--Local taxation and regulation.
49-34-9 Power to borrow money and give security--Resolution of board of directors.
49-34-10 Foreclosure of security--Succession to rights and powers.
49-34-11 Recordation of security with secretary of state--Effective date of lien--After acquired property.
49-34-11.1 Public utility defined.
49-34-11.2 Perfection of security interest in personal property or fixtures of public utility--Filing requirements and effectiveness.
49-34-11.3 Mortgage or trust deed securing debt executed by public utility--Filing requirements and effectiveness.
49-34-11.4 Applicability of uniform commercial code and other laws--Single filing--Compliance with retention requirements.
49-34-12 Assignment or discharge of security--Recordation with secretary of state--Description of property.
49-34-13 False meter readings as misdemeanor.
49-34-14 Overcharging--Civil fine--Charging station exempt.
49-34-15 Destruction of facilities as felony.
49-34-16 Unauthorized or fraudulent connection as misdemeanor--Civil liability unaffected.
49-34-17 Joint ownership of property used in connection with natural gas or electricity--Agreements for restrictions on alienation.
49-34-18 Unauthorized use of service--Definitions.
49-34-19 Civil liability for unauthorized service and damage to facilities--Limitation of action--Treble damages--Costs.
49-34-19.1 Tampering with back flow preventer a misdemeanor.
49-34-20 Presumptions.
49-34-21 Remedies additional.
49-34-1. Use of public way for transmission facilities.
Subject to the provisions of §§ 31-26-1 to 31-26-8, inclusive, any municipal corporation or county may grant to any corporation organized under chapter 49-33, upon such terms as the proper authorities thereof shall determine, the use of any street, highway, turnpike, or bridge within its limits for the purpose of transmitting or distributing electricity, or for the purpose of laying single or double tracks and running cars thereon for the carriage of freight and passengers, to be propelled by animal, electric, or mechanical power, with all the necessary turnouts, curves, and switches and other conveniences for the transmission of electric power and the laying and operation of such railroad along such highway shall not be held to be an additional burden.
Source: SDC 1939, § 52.1510.
49-34-2. Construction standards--Obstruction of travel--Repairs.
Every railroad, electric light, or power line, constructed and operated upon any public street or highway pursuant to § 49-34-1, shall be constructed upon the most approved plan and be subject to such reasonable rules and regulations as the proper authorities may from time to time prescribe and shall be so laid and operated as not to obstruct public travel therein; rails shall be laid flush with the surface of the street or highway and shall not be permitted to project above the same; that portion of the street or roadway between tracks and for one foot from the outer edge thereof shall be kept in repair and condition by such corporation at its own expense.
Source: SDC 1939, § 52.1510.
49-34-3. Contracts for central heating.
The board of county commissioners, the governing body of any municipal corporation, the board of trustees or directors of any religious, fraternal, or benevolent society, association, or corporation shall have power and authority to enter into a contract with a central heating corporation or association for the purpose of securing heat, building and maintaining its mains in front of or alongside its property, and shall have the right to use the funds of said county, municipal corporation, or religious, fraternal, or benevolent society, association, or corporation for the purposes herein mentioned.
Source: SDC 1939, § 52.1802.
49-34-4. Acquiring property for accessory facilities--Procedure for condemnation.
Any corporation organized under chapter 49-33 may acquire by purchase, grant, or condemnation and hold and use such real and other property as may be necessary for the construction and operation of its business, including powerhouses, carbarns, stations, machine and repair shops, electric plants, and power lines, including right of way and water for ditches, canals, or flumes by which to generate electricity therefor, and other conveniences reasonably necessary to accomplish the objects of its incorporation.
Whenever any such corporation shall exercise the right of eminent domain it shall proceed as provided by law and the rules of practice and procedure pertaining to condemnation proceedings.
Source: SDC 1939, § 52.1511.
49-34-5. Condemnation of parks or boulevards prohibited.
Nothing contained in this chapter or chapter 49-33 shall be construed to authorize the condemnation of any part of any public park or boulevard in any municipality.
Source: SDC 1939, § 52.1511; SL 1992, ch 60, § 2.
49-34-6. Extension of facilities--Branch lines--Designation of route--Filing with secretary of state--Aid authorized.
Any corporation organized under chapter 49-33 may extend its railroad, electric light or power line from any point named in its charter or articles of incorporation and may build branch lines either from any point on its line or from any point on the line of any other company connecting or to be connected with its line. Before such extension is made, such corporation shall, by resolution of its directors, to be entered in the record of its proceedings, designate the route of such proposed branch and extension and file a copy of such record, certified by its president and secretary, with the secretary of state and cause the same to be recorded. Thereupon such corporation shall have all the rights and privileges to make such extension and receive aid therefor which it would have had if such branch or extension had been authorized in its original certificate.
Source: SDC 1939, § 52.1513.
49-34-7. Branches to commercial facilities--Condemnation of right-of-way--Maximum length of branch.
Every corporation organized under chapter 49-33 may build, maintain, and operate branch or spur tracks, electric light or power lines from its main line or any branch thereof to and upon the grounds of any mill, elevator, storehouse, warehouse, or manufacturing establishment with tracks, switches, and such turnouts as may be convenient or necessary, and may acquire its right-of-way for such spur tracks, electric light or power lines by grant, purchase, or condemnation; provided that the provisions of § 49-34-6 shall not apply to nor affect the provisions of this section if the branches and spur tracks, electric light or power lines herein mentioned do not exceed two miles in length from the line of such railroad, electric or power line.
Source: SDC 1939, § 52.1514.
49-34-8. Extension of foreign facilities through state--Local taxation and regulation.
Any street railway, gas, electric light, or power company incorporated or existing under the laws of the United States, or any state or territory of the United States, may construct, extend, maintain, and operate its tracks, power powerhouses, or lines, or any portion or branch thereof, into and through this state, and any such corporation shall possess, and may exercise and enjoy all the rights, powers, privileges, and franchises possessed by such corporations organized under the laws of this state; all such corporations shall be subject to taxation, and regulation and control by the laws of this state, in all respects the same as corporations organized under the laws of this state; provided that such corporations shall first comply with all provisions of the laws of this state relating to foreign corporations doing business herein.
Source: SDC 1939, § 52.1517.
49-34-9. Power to borrow money and give security--Resolution of board of directors.
Any corporation organized under the provisions of chapter 49-33 may, from time to time, borrow such sums of money at such rates of interest and upon such terms as the corporation or board of directors shall agree and authorize, and shall have power to execute trust deeds or mortgages, or both, as occasion may require, on any or all of its property for any amounts borrowed or owing by the corporation and therein to make provisions granting, transferring, or mortgaging its railroad tracks, right-of-way, powerhouses, shops, barns, depot grounds, right, franchises, exemptions, rolling stock, furniture, tools, equipment, and appurtenances, used in connection with the business of such corporation in any manner whatever, then belonging to such corporation or which it may thereafter acquire as security for any bonds or evidences of debt therein mentioned in such manner as the corporation or its directors shall think proper and shall by resolution direct, and such instrument shall fully convey the same as therein described.
Source: SDC 1939, § 52.1516; SL 1947, ch 237.
49-34-10. Foreclosure of security--Succession to rights and powers.
In case of a judicial sale by virtue of any trust deed or mortgage authorized by § 49-34-9, any person or any other corporation organized under the provisions of chapter 49-33 may become the purchaser thereat, and the person or corporation acquiring title under such sale, his or its associates, successors or assigns shall thereafter have, exercise, and enjoy all the rights, powers, franchises, and advantages, which were possessed by such corporation making the same or contracting the debt, as fully and absolutely as such corporation, its officers, or agents might have done had such sale not taken place.
Source: SDC 1939, § 52.1516; SL 1947, ch 237.
49-34-11. Recordation of security with secretary of state--Effective date of lien--After acquired property.
Any trust deed or mortgage executed by a corporation organized under the provisions of chapter 49-33 or qualified in accordance with the provisions of §§ 47-1A-1501 to 47-1A-1532, inclusive, relative to the qualification of foreign corporations to transact business in this state, and carrying on a street railway, natural or artificial gas or electric public utility business shall be filed and recorded in the office of the secretary of state and such filing for record thereof shall create a lien upon such property, real and personal, from the time of such filing, and shall have the same effect, as to any property in this state described therein, as the record or filing of any similar instrument in the office of the register of deeds as to property in his county as if it were filed or recorded in each and every county in which any property therein described may be situated, and such filing and recording in the office of the secretary of state shall be the only recording or filing required. The deeds of trust or mortgages may by their terms include after-acquired real and personal property, and are as valid and effectual for that purpose as if this after-acquired property were owned by, and in possession of, the corporation giving the deed of trust or mortgage at the time of its execution.
Source: SDC 1939, § 52.1516; SL 1947, ch 237; SL 1989, ch 402, § 1; SL 2005, ch 202, § 13.
49-34-11.1. Public utility defined.
As used in §§ 49-34-11.1 to 49-34-11.4, inclusive, the term "public utility" means a corporation, its lessees, its trustees and receivers, operating, maintaining or controlling in this state after July 1, 1967, equipment or facilities for the production, generation, transmission or distribution at retail of gas or electric service for the public and in the transmission and distribution using, or having a right to use, public roads, streets, alleys, or other public ways for the purpose of constructing, using, operating or maintaining wires, pipes, conduits or other facilities, which corporation is organized under the provisions of chapter 49-33 or is qualified in accordance with the provisions of §§ 47-1A-1501 to 47-1A-1532, inclusive, as a foreign corporation authorized to transact business in this state.
Source: SL 1989, ch 402, § 2; SL 2005, ch 202, § 14.
49-34-11.2. Perfection of security interest in personal property or fixtures of public utility--Filing requirements and effectiveness.
Notwithstanding §§ 57A-9-302, 57A-9-401, 57A-9-402, and 57A-9-403, all filings required under the uniform commercial code in order to perfect a security interest against the personal property or fixtures of a debtor public utility shall be made and maintained in the Office of the Secretary of State. If the financing statement covers goods of a debtor public utility which are or are to become fixtures, no description of the real estate or the name of the record owner thereof is required. Filing of a financing statement against the property of a debtor public utility is effective until released or terminated.
Source: SL 1989, ch 402, § 3.
49-34-11.3. Mortgage or trust deed securing debt executed by public utility--Filing requirements and effectiveness.
A mortgage or trust deed to secure a debt executed by a public utility as defined in § 49-34-11.1, covering the whole or part of its easements or other less than fee simple interests in real estate used in the transmission or distribution of gas or electric service, and also covering the fixtures of the public utility which are annexed to it, may be filed in the office of the secretary of state along with, or as part of, the financing statement covering the fixtures. The filing of the mortgage or deed of trust has the same effect, and is notice of the rights and interest of the mortgagee or trustee in the easements and other less than fee simple interest in real estate to the same extent, as if the mortgage or deed of trust were duly recorded in the office of the register of deeds of the counties in which the real estate is situated. The effectiveness of the filing will terminate at the same time as provided § 49-34-11.2 for the termination of the effectiveness of a fixture filing. For the purpose of this section, a mortgage or deed of trust filed under this section contains a sufficient description to give notice of the rights and interest of the mortgagee or trustee in the easements and other less than fee simple interest in the real estate used for the transmission and distribution of gas or electric service of the public utility if the mortgage or deed of trust states that the security includes rights-of-way of, or transmission or distribution systems of, or lines of, the public utility, or all property owned by the public utility. A mortgage or deed of trust filed before July 1, 1989, pursuant to § 49-34-11, which complies with the provisions of this section, is filed under this section as of July 1, 1989. Section 49-34-11 applies to real estate owned in fee simple by a public utility.
Source: SL 1989, ch 402, § 4.
49-34-11.4. Applicability of uniform commercial code and other laws--Single filing--Compliance with retention requirements.
Unless displaced by the specific provisions of §§ 49-34-11.1 to 49-34-11.4, inclusive, the uniform commercial code and other applicable laws remain in full force and effect and supplement the provisions of §§ 49-34-11.1 to 49-34-11.4, inclusive. The public utility may make a single filing under §§ 49-34-11, 49-34-11.2 and 49-34-11.3, and the secretary of state shall accept the same as a single filing for all three purposes. The financing statement shall identify the public utility as a "transmitting utility" and shall be indexed under subsection 57A-9-403(4), but the index may also refer to the secretary of state's recording data for real estate records under §§ 49-34-11 and 49-34-11.3 and the retention by the secretary of state of a microfilm or other photographic copy of the document filed in the real estate records shall be sufficient to comply with the retention requirement of subsection 57A-9-403(4).
Source: SL 1989, ch 402, § 5.
49-34-12. Assignment or discharge of security--Recordation with secretary of state--Description of property.
Any trust deed or mortgage described in § 49-34-9 may be assigned or discharged by filing for record in the office of the secretary of state and in the office of the register of deeds of each county, if any, in which the trust deed or mortgage shall have been filed for record an instrument of assignment or discharge executed in the manner and setting forth the information required with respect to real estate mortgages by §§ 44-8-13 and 44-8-14, respectively; provided, however, that no such instrument need set forth the description of the mortgaged property, except that an instrument of discharge whereby less than all the mortgaged property is released from the lien of the trust deed or mortgage shall set forth the full description of, or clearly identify by reference to numbered or lettered portions of the descriptions as the same appear in the trust deed or mortgage, the property so released.
Source: SDC 1939, § 52.1516 as added by SL 1947, ch 237.
49-34-13. False meter readings as misdemeanor.
It is a Class 2 misdemeanor for any person employed to read meters who knowingly reports to his employer that a consumer of gas, water, electricity, heat, refrigeration or air has used a greater quantity of gas, water, electricity, heat, refrigeration or air than the amount actually used by the consumer.
Source: SDC 1939, § 13.1814; SL 1983, ch 15, § 135.
49-34-14. Overcharging--Civil fine--Charging station exempt.
Any person who knowingly charges any consumer of gas or electricity an amount greater than that actually billed by a gas utility or electric utility, as defined in § 49-34A-1, may be punished by a civil fine not exceeding five hundred dollars. Nothing in this section applies to an electric vehicle charging station selling or providing electricity pursuant to § 49-34A-116.
Source: SDC 1939, § 13.1814; SL 1983, ch 15, § 136; SL 1983, ch 331, § 12; SL 2024, ch 188, § 1.
49-34-15. Destruction of facilities as felony.
Any person who, without lawful authority, intentionally breaks, digs up, or obstructs any pipe or main for conducting gas or water, any works erected for supplying buildings with gas or water, or any appurtenances or appendages therewith connected, is guilty of a Class 6 felony.
Source: SDC 1939, § 13.4509; SL 1983, ch 15, § 137.
49-34-16. Unauthorized or fraudulent connection as misdemeanor--Civil liability unaffected.
It is a Class 2 misdemeanor for any person without lawful authority to connect or cause to be connected with a main or service pipe or conductor of heat, refrigeration, air conditioning, gas, water or electricity, a pipe, wire or other device for the purpose of obtaining gas, water, electrical current, heat or other service therefrom; or to, with intent to defraud, connect or cause to be connected with any meter installed by such company for the purpose of registering the amount of gas, water, electricity, heat or other service supplied to a customer, any pipe, wire or other device, or to disconnect, change, or in any manner interfere with any such meter or any pipe, wire or appliance connected therewith, so that such meter will not measure or register the full amount of gas, water, electricity, heat or other service supplied to a customer. Nothing in this section shall affect the right of a service company to recover by an action at law for the loss of gas, water, electricity, heat or other service, or any injury caused by such unlawful connection.
Source: SDC 1939, § 13.1813; SL 1983, ch 15, § 138.
49-34-17. Joint ownership of property used in connection with natural gas or electricity--Agreements for restrictions on alienation.
Any two or more persons who own or intend to own, jointly, by partnership interest, or as tenants in common any property used or to be used in whole or in part for the generation, transmission or distribution of electricity, or for the production, gathering, storage, processing, transmission or distribution of manufactured or natural gas, in each case for the ultimate public consumption, may enter into agreements waiving their respective rights to the partition of such property or otherwise restricting the alienation thereof for a period of time ending not later than the abandonment of the use of such property, and without limiting the generality of the foregoing, such agreements shall not be invalid or unenforceable as violating any rule of law against perpetuities or suspension of the power of alienation of the title to the property.
This section shall apply to agreements entered into prior to, as well as subsequent to, the effective date of this section.
Source: SL 1972, ch 251, §§ 1, 2.
49-34-18. Unauthorized use of service--Definitions.
Terms as used in this section and §§ 49-34-19 to 49-34-21, inclusive, mean:
(1) "Bypassing," the act of attaching, connecting or in any manner affixing any wire, cord, socket, motor or other instrument, device or contrivance to the utility supply system or any part thereof in a manner as to transmit, supply or use any utility service without passing through an authorized meter for measuring or registering the amount of utility service;
(2) "Customer," the person responsible for payment for utility services for the premises. The term includes employees and agents of the customer;
(3) "Tampering," damaging, altering, adjusting or in any manner interfering with or obstructing the action or operation of any meter provided for measuring or registering the amount of utility service passing through the meter, or any valve provided by the utility for preventing back flow of water into the supply lines, or any other devices owned and maintained by the utility;
(4) "Unauthorized metering," removing, moving, installing, connecting, reconnecting or disconnecting any meter or metering device for utility service by a person other than an authorized employee or agent of a utility;
(5) "Utility," any public utility, municipally owned utility, rural water system or cooperative utility which provides electricity, gas or water for sale to consumers;
(6) "Utility service," the provision of electricity, gas, water or any other service or commodity customarily furnished by the utility for compensation;
(7) "Utility supply system," includes all wire, conduits, pipes, cords, sockets, motors, meters, instruments and all other devices used by the utility for the purpose of providing utility service.
Source: SL 1985, ch 375, § 1; SL 1999, ch 228, § 1.
49-34-19. Civil liability for unauthorized service and damage to facilities--Limitation of action--Treble damages--Costs.
A utility may bring a civil action for damages against any person who commits, authorizes, solicits, aids, abets or attempts any of the following acts resulting in damages to the utility, namely: bypassing, tampering or unauthorized metering. In addition, a utility may bring a civil action for damages pursuant to this section against any person who knowingly receives utility service through means of bypassing, tampering or unauthorized metering. An action brought pursuant to this section shall be commenced within three years after the cause of action accrues. In any civil action brought pursuant to this section, the utility shall be entitled, upon proof of willful or intentional bypassing, tampering or unauthorized metering, to recover as damages three times the amount of the actual damages plus all reasonable expense and costs incurred on account of the bypassing, tampering or unauthorized metering, including but not limited to, costs and expenses for investigation, disconnection, reconnection, service calls, employees and equipment, expert witness fees, costs of trial and reasonable attorney's fees as allowed by the court. If a defendant in a civil action brought pursuant to §§ 49-34-18 to 49-34-21, inclusive, prevails, the court shall award costs to the defendant.
Source: SL 1985, ch 375, § 2.
49-34-19.1. Tampering with back flow preventer a misdemeanor.
It is a Class 2 misdemeanor for any person without lawful authority to connect, disconnect, bypass, or tamper with a back flow preventer installed on a public water system. Nothing in this section affects the right of a water service company to recover any damages caused by the violation of this section.
Source: SL 1999, ch 228, § 2.
49-34-20. Presumptions.
There is a rebuttable presumption that a tenant or occupant of any premises where bypassing, tampering or unauthorized metering is proven to exist, caused or had knowledge of such bypassing, tampering or unauthorized metering, if the tenants or occupant had controlled access to the part of the utility supply system on the premises where the bypassing, tampering or unauthorized metering is proven to exist, and if the tenant or occupant was responsible or partially responsible for payment to the utility or to any other person for utility services provided for the premises. There is a rebuttable presumption that a utility customer at any premises where bypassing, tampering or unauthorized metering is proven to exist, caused or had knowledge of such bypassing, tampering or unauthorized metering, if the customer controlled access to the part of the utility supply system on the premises where the bypassing, tampering or unauthorized metering is proven to exist.
Source: SL 1985, ch 375, § 3.
49-34-21. Remedies additional.
It is the purpose of this section and §§ 49-34-18 to 49-34-20, inclusive, to provide additional remedies to avoid the wrongful use of the facilities of utilities; and nothing in this section and §§ 49-34-18 to 49-34-20, inclusive, abridges or alters those rights of action or remedies existing prior to July 1, 1985.
Source: SL 1985, ch 375, § 4.
CHAPTER 49-34A
GAS AND ELECTRIC UTILITIES REGULATION
49-34A-1 Definition of terms.
49-34A-2 Service required of utilities.
49-34A-2.1 Refusal of service without permission of commission prohibited--Exceptions--Violation as petty offense--Separate offenses.
49-34A-3 Unreasonable preferences and prejudices prohibited--Violation as petty offense--Separate offenses.
49-34A-4 Regulatory powers of commission--Rules.
49-34A-5 Municipal authority terminated.
49-34A-6 Rates to be reasonable and just--Regulation by commission.
49-34A-7 System of accounts.
49-34A-8 Criteria for determination of rates by commission.
49-34A-8.1 Policy to alleviate financial burden of pricing structure.
49-34A-8.2 Incentive rates for improved performance and efficiency.
49-34A-8.3 Business development rates--Public interest exception.
49-34A-8.4 Burden on public utility to establish criteria for determination of rates.
49-34A-9 Deviation from schedules of rates and charges prohibited--Violation as petty offense--Separate offenses.
49-34A-10 Tariffs and schedules filed by utilities--Public inspection.
49-34A-11 Burden of proving reasonableness of rates.
49-34A-12 Change in rates--Notice to commission and affected customers.
49-34A-13 Hearing on rate changes.
49-34A-13.1 Persons permitted to appear before commission or submit comments--Disclosure of identity and interest--Party status controlled by statutes and rules.
49-34A-14 Suspension of proposed rate or practice pending hearing--Time.
49-34A-15 49-34A-15. Repealed by SL 1976, ch 296, § 30.
49-34A-16 Delay in effectuation of suspended rate schedule pending disposition of previously filed changes--Time--Violation as petty offense--Separate offenses.
49-34A-17 Implementation of proposed practice, proposed rate, or lower rate--Rate design--Accounts of customer payments--Refund of excess--Time limit.
49-34A-18 49-34A-18. Repealed by SL 1976, ch 296, § 30.
49-34A-19 Costs and revenue considered in determining rates--Acquisition cost of property as alternative--Projected income and expenses.
49-34A-19.1 Separate accounts required for nonutility business--Profits and losses considered by commission.
49-34A-19.2 Disallowance for rate purposes of unreasonable profits of affiliates in sales or services to utility.
49-34A-20 Rate increases not required to prevent competition.
49-34A-21 Determination of rates--Order--Maximum rate--Classification adjustment.
49-34A-22 Future rate reduction or credit as alternative to refund of excess charges pending determination on increases.
49-34A-23 Action by commission for refund of excess charges pending determination on increase--Costs recovered--Limitation of actions.
49-34A-24 Municipal taxes on utilities passed on to customers.
49-34A-25 Automatic adjustment of rates for changes in energy, fuel and gas costs, ad valorem taxes paid or commission approved fuel incentives--Revised rate schedule filed by utility--Filing of bond if commission orders--Order of commission--Appeal.
49-34A-25.1 Approval of tariff mechanisms for automatic annual adjustment of charges for jurisdictional costs of new or modified transmission facilities.
49-34A-25.2 Approval, rejection, or modification of certain tariffs--Notice and hearing.
49-34A-25.3 Filing for annual rate adjustments--Contents.
49-34A-25.4 Standards for approval of annual rate adjustments.
49-34A-26 Investigation of rates or services by commission--Notice--Action.
49-34A-27 Standards, classifications, regulations or practices fixed by commission--Measuring devices--Quality control--Filing with commission.
49-34A-28 49-34A-28. Repealed by SL 1976, ch 296, § 30.
49-34A-29 Issue of security or assumption of liability by utility prohibited unless authorized by commission.
49-34A-30 Short-term obligations permitted without commission approval--Maximum outstanding.
49-34A-31 Prompt disposition of applications on securities and obligations--Continuance.
49-34A-32 Findings required to permit issue of securities or assumption of obligation.
49-34A-33 Order permitting issue of securities or assumption of obligations--Supplemental orders.
49-34A-34 Application of security or proceeds in contravention of order prohibited unless commission consents.
49-34A-35 Sale, lease, disposition, purchase, merger, or consolidation prohibited unless authorized by commission--Certain transactions excepted.
49-34A-36 Investigation of proposed disposition of property--Time for decision.
49-34A-37 Purchase of voting stock in other utilities prohibited without commission's consent--Violation as petty offense--Separate offenses.
49-34A-38 49-34A-38, 49-34A-38.1. Repealed by SL 2007, ch 270, §§ 4, 5.
49-34A-39 Investigation of condition of public utilities--Hearings.
49-34A-40 Commission access to utility premises to examine, test and inspect--Utility's right to representation--Utilities to cooperate and assist.
49-34A-41 Order for production of utility books and records--Out-of-state records.
49-34A-42 Electric utility's exclusive rights in assigned service area--Connecting facilities in another area.
49-34A-43 Boundaries of assigned service areas--Contracts between utilities--Service areas within municipalities.
49-34A-44 Maps of service areas to be filed by electric utilities--Boundaries assigned by commission order--Adjustment of intertwined service areas--Protest of assigned service areas.
49-34A-45 Payments to municipality from revenues of cooperative providing electric service within municipality.
49-34A-46 Payments to municipality owning electric system from revenues of electric utility operating within municipality.
49-34A-47 Time of payments to municipality.
49-34A-48 Electric utility's right to continue service in area annexed to municipality.
49-34A-49 Municipal offer to purchase electric facilities in annexed area.
49-34A-50 Purchase price for electric facilities in area annexed by municipality.
49-34A-51 Application for determination by commission of price for municipal purchase of electric facilities in annexed area.
49-34A-52 Acknowledgment by utility of municipal offer to purchase facilities in annexed area--Obligations of parties.
49-34A-53 49-34A-53. Repealed by SL 1992, ch 330, § 2.
49-34A-53.1 Purchase of facilities in territory annexed after July 1, 1975--Time limit--Determination of gross revenue.
49-34A-54 Purchase by utility of areas disannexed by municipality.
49-34A-55 Sale or exchange of rights and property allowed between municipalities and utilities.
49-34A-56 Large new customers not required to take service from assigned utility--Notice and hearing by commission--Factors considered.
49-34A-57 Extension of lines to serve utility's or municipality's own property.
49-34A-58 Adequacy of service determined by commission--Notice and hearing--Order to correct inadequacy--Transfer of rights on failure to comply.
49-34A-59 Notice and hearing on violation of service area provisions--Time for decision.
49-34A-60 49-34A-60. Repealed by SL 1976, ch 296, § 30.
49-34A-61 Burden of proof on party seeking to modify or vacate commission order.
49-34A-61.1 Rehearings--Application--Grant or refusal--Time--Orders not stayed unless commission directs.
49-34A-62 Parties entitled to rehearings and appeals--Procedure.
49-34A-63 49-34A-63, 49-34A-64. Repealed by SL 1976, ch 296, § 30.
49-34A-65 Bond required when stay or suspension granted--Other security in addition or in lieu--Refund of increase not allowed on appeal.
49-34A-66 Violation of law or commission order--Civil penalty.
49-34A-67 Each violation or day's continuation as separate offense.
49-34A-68 Penalties cumulative--Single action does not bar other remedies.
49-34A-69 Commission to refer violations to attorney general.
49-34A-70 Preference on calendar for proceedings under chapter.
49-34A-71 Chapter complete--Laws in conflict repealed.
49-34A-72 Commission participation in federal proceedings--Recovery of expenses.
49-34A-73 Phase in rate plan for rate increases due to plant additions.
49-34A-73.1 Plant additions defined.
49-34A-74 Approval of phase in rate plan--Conditions.
49-34A-75 Review of reasonableness of rates under phase in rate plan--Adjustment.
49-34A-76 Filing of general rate case after end of phase in rate plan--Exception.
49-34A-77 Filing fee for phase in rate plan.
49-34A-78 Nonapproval of application for phase in rate plan.
49-34A-79 Public or electric utilities authorized to remove certain obstructions.
49-34A-80 Certain commercial small power production facilities subject to 49-34A-80 to 49-34A-92.
49-34A-81 49-34A-81. Repealed by SL 2003, ch 49, § 4.
49-34A-82 Definitions.
49-34A-83 Refund or credit of certain taxes for construction of certain power production facilities.
49-34A-84 Requirements for refund.
49-34A-85 Amount of refund.
49-34A-86 Application for refund--Refund claim not assignable--Exception.
49-34A-87 Secretary to prescribe form and documentation requirements.
49-34A-88 Deadline for submitting claim for refund--Department to withhold percentage of refund.
49-34A-89 Withheld amounts paid at completion of project.
49-34A-90 Fraudulent claim--Refunded sums constitute lien in favor of state.
49-34A-91 Right to hearing on denial of refund claim.
49-34A-92 Promulgation of rules.
49-34A-93 Implementation of and compliance with certain federal energy acts.
49-34A-94 Renewable electricity and recycled energy defined.
49-34A-95 Renewable energy credits for electricity authorized.
49-34A-96 Promulgation of rules regarding renewable energy credit system.
49-34A-97 Approval of tariff mechanisms for automatic annual adjustment of charges for environmental improvements.
49-34A-98 Approval, rejection, or modification of certain electric service tariffs.
49-34A-99 Annual rate adjustment filings for certain electric service tariffs.
49-34A-100 Approval, rejection, or modification of annual rate adjustment.
49-34A-101 State renewable, recycled, and conserved energy objective established.
49-34A-102 Qualifications for meeting renewable, recycled, and conserved energy objective.
49-34A-103 Calculation of amount of electricity from renewable, recycled, and conserved energy source.
49-34A-104 Evaluation of use as reasonable and cost effective.
49-34A-105 Annual reports concerning renewable, recycled, and conserved energy objective.
49-34A-106 Purchase and retirement of renewable energy and recycled energy credits.
49-34A-107 Separation and protection of assets of gas and electric utilities.
49-34A-108 Electric utility to file rates for purchases of electricity produced by small renewable power facilities.
49-34A-109 Definitions.
49-34A-110 Responsibility for safety and reliability of farm tap distribution system.
49-34A-111 Liability of farm tap service provider.
49-34A-112 Repealed.
49-34A-113 Repealed.
49-34A-114 Repealed.
49-34A-115 Repealed.
49-34A-116 Electric vehicle charging station--Electric utility--Exception.
49-34A-1. Definition of terms.
Terms used in this chapter mean:
(1) "Assigned service area," the geographical area in which the boundaries are established as provided in §§ 49-34A-42 to 49-34A-44, inclusive, and 49-34A-48 to 49-34A-59, inclusive;
(2) "Commission," the South Dakota Public Utilities Commission;
(3) "Customer," any person contracting for or purchasing gas or electric service from a utility;
(4) "Depreciated original cost," the cost of property to the person first devoting it to public service, less the depreciation reserve, which includes accumulated depreciation charges calculated on a straight-line method and based upon the estimated service life of the property together with other items normally accounted for in the depreciation reserve, and does not include any good will or going concern value, nor does it include certificate value in excess of payments made or costs incurred in the initial acquisition thereof;
(5) "Electric line," any line for conducting electric energy at a design voltage of twenty-five thousand volts phase to phase or less and used for distributing electric energy directly to customers;
(6) "Electric service," electric service furnished to a customer for ultimate consumption, but not including wholesale electric service furnished by an electric utility to another electric utility for resale;
(7) "Electric utility," any person operating, maintaining, or controlling in this state, equipment or facilities for providing electric service to or for the public including facilities owned by a municipality;
(8) "Gas service," retail sale of natural gas or manufactured gas distributed through a pipeline to fifty or more customers or the sale of transportation services by an intrastate natural gas pipeline;
(9) "Gas utility," any person operating, maintaining, or controlling in this state equipment or facilities for providing gas service to or for the public;
(9A) "Intrastate natural gas pipeline," any natural gas pipeline located entirely within the state that transports gas from a receipt point to one or more locations for customers other than the pipeline operator. However, the term does not apply if there is only one customer and the customer is a wholly-owned subsidiary of the pipeline operator, the customer is the parent company of the pipeline operator, or the customer and the pipeline operator are wholly-owned subsidiaries of the same parent company. Further, the term does not apply to natural gas lines and appurtenant facilities used to gather gas from natural gas production facilities or sites and move the gas to an interconnecting transportation pipeline system;
(10) "Municipality," any incorporated town or city in South Dakota;
(11) "Person," a natural person, a partnership, a private corporation, a public corporation, a limited liability company, a municipality, an association, a cooperative whether incorporated or not, a joint stock association, a business trust, any of the federal, state and local governments, including any of their political subdivisions, agencies and instrumentalities, or two or more persons having joint or common interest;
(12) "Public utility," any person operating, maintaining, or controlling in this state equipment or facilities for the purpose of providing gas or electric service to or for the public in whole or in part, in this state. However, the term does not apply to an electric or gas utility owned by a municipality, political subdivision, or agency of the State of South Dakota or any other state or a rural electric cooperative as defined in § 47-21-1 for the purposes of §§ 49-34A-2 to 49-34A-4, inclusive, §§ 49-34A-6 to 49-34A-41, inclusive, and § 49-34A-62. The term, public utility, does apply to a rural electric cooperative which provides gas service;
(13) "Rate," any compensation, charge and classification, or any of them demanded, observed, charged, or collected by any public utility for any service and any rules, regulations, practices, or contracts affecting any such compensation, charge or classification;
(14) "Securities," stock and stock certificates or other evidence of interest or ownership, and bonds, notes or other evidence of indebtedness.
Source: SL 1965, ch 254, § 1; SDCL § 49-41-1; SL 1970, ch 261, § 1; SL 1975, ch 283, § 1; SL 1976, ch 296, §§ 1 to 6; SL 1977, ch 391; SL 1987, ch 354, § 2; SL 1990, ch 374; SL 1991, ch 386, § 1; SL 1994, ch 349, § 6; SL 1996, ch 273, §§ 1, 2; SL 2015, ch 231, § 1.
49-34A-2. Service required of utilities.
Every public utility shall furnish adequate, efficient, and reasonable service.
Source: SL 1970, ch 261, § 32; SDCL Supp, § 49-41-9.1; SL 1975, ch 283, § 2.
49-34A-2.1. Refusal of service without permission of commission prohibited--Exceptions--Violation as petty offense--Separate offenses.
No public utility may, except in cases of emergency, fail to provide, discontinue, reduce or impair service to a community, or a part of a community, except for nonpayment of account or violation of rules and regulations, unless permission has been first obtained from the Public Utilities Commission to do so. An intentional violation of this section is a petty offense. Each day's violation is a separate offense.
Source: SL 1976, ch 296, § 7; SL 1983, ch 15, § 139.
49-34A-3. Unreasonable preferences and prejudices prohibited--Violation as petty offense--Separate offenses.
No public utility may, as to rates or service, make or grant an unreasonable preference or advantage to any person or subject any person to any unreasonable prejudice or disadvantage. An intentional violation of this section is a petty offense. After the first judgment, each day's violation is a separate offense.
Source: SL 1970, ch 261, §§ 31, 32; SDCL Supp, § 49-41-9.1; SL 1975, ch 283, § 5; SL 1983, ch 15, § 140.
49-34A-4. Regulatory powers of commission--Rules.
The commission shall regulate to the extent provided in this chapter every public utility as defined in this chapter. The commission may promulgate rules pursuant to chapter 1-26 in furtherance of the purposes of this chapter concerning:
(1) Procedures and requirements for applications for rate and tariff changes;
(2) Requirements for gas and electric utilities to maintain and make available to the public and the commission records and information;
(3) Requirements and procedures regarding customer billings and meter readings;
(4) Requirements regarding availability of meter tests;
(5) Requirements regarding billing adjustments for meter errors;
(6) Procedures and requirements for handling customer disputes and complaints;
(7) Procedures and requirements regarding temporary service, changes in location of service and service interruptions;
(8) Standards and procedures to ensure nondiscriminatory credit policies;
(9) Procedures, requirements and record-keeping guidelines regarding deposit policies;
(10) Procedures, requirements and record-keeping guidelines regarding customer refunds;
(11) Policies for refusal of gas or electric service;
(12) Policies for disconnection and transfer of gas and electric service;
(13) Customer payment plans for delinquent bills;
(14) Requirements regarding advertising; and
(15) Procedures and requirements for applications for tariff mechanisms seeking the automatic annual adjustment of charges for the jurisdictional costs of new or modified transmission facilities under the provisions of § 49-34A-25.1.
Source: SL 1975, ch 283, § 6; SL 1986, ch 22, § 23; SL 1990, ch 371, § 3; SL 2006, ch 239, § 6.
49-34A-5. Municipal authority terminated.
Municipal corporations shall have no authority or jurisdiction over rates and conditions of service of any public utility subject to the jurisdiction of the South Dakota Public Utilities Commission under the provisions of this chapter.
Source: SL 1975, ch 283, § 31.
49-34A-6. Rates to be reasonable and just--Regulation by commission.
Every rate made, demanded or received by any public utility shall be just and reasonable. Every unjust or unreasonable rate shall be prohibited. The Public Utilities Commission is hereby authorized, empowered and directed to regulate all rates, fees and charges for the public utility service of all public utilities, including penalty for late payments, to the end that the public shall pay only just and reasonable rates for service rendered.
Source: SL 1975, ch 283, § 16.
49-34A-7. System of accounts.
The Public Utilities Commission shall designate a system of accounts to be kept by public utilities subject to its jurisdiction.
Source: SL 1975, ch 283, § 26; SL 1976, ch 296, § 8.
49-34A-8. Criteria for determination of rates by commission.
The commission, in the exercise of its power under this chapter to determine just and reasonable rates for public utilities, shall give due consideration to the public need for adequate, efficient, economical, and reasonable service and to the need of the public utility for revenues sufficient to enable it to meet its total current cost of furnishing such service, including taxes and interest, and including adequate provision for depreciation of its utility property used and necessary in rendering service to the public, and to earn a fair and reasonable return upon the value of its property.
Source: SL 1975, ch 283, § 16; SL 1976, ch 296, § 9; SL 2007, ch 269, § 1.
49-34A-8.1. Policy to alleviate financial burden of pricing structure.
Notwithstanding any other provision of law, the Public Utilities Commission shall after opportunity for hearing and rate design studies develop a policy alleviating the financial burden to electric and gas consumers of the declining block rate structure and any other pricing structure presently used by electric and gas utilities in the State of South Dakota.
Source: SL 1976, ch 296, § 10.
49-34A-8.2. Incentive rates for improved performance and efficiency.
In addition to any other rate authorized by this chapter, the commission may approve incentive rates to encourage improvement in the performance and efficiency of public utilities. The rates shall be in the form of preapproved rate models made applicable as levels of performance are attained by the utility. If approved, no such incentive rate constitutes a violation of § 49-34A-3 or a change in rates pursuant to § 49-34A-12. The provisions of this section apply to any incentive rate tariff approved by the commission in existence on July 1, 1996.
Source: SL 1996, ch 274.
49-34A-8.3. Business development rates--Public interest exception.
In addition to any other rate authorized by this chapter, the commission may approve business development rates authorizing a utility to negotiate and agree with a customer for specific rates which differ from standard rates otherwise applicable to the customer. All business development rates shall be approved as being in the public interest under such terms and conditions as the commission may provide in a proceeding under this chapter. If approved, no such business development rate constitutes a violation of § 49-34A-3 or a change in rates pursuant to § 49-34A-12. The provisions of this section apply to any business development rate tariff approved by the commission in existence on July 1, 1996.
Source: SL 1996, ch 275.
49-34A-8.4. Burden on public utility to establish criteria for determination of rates.
The burden is on the public utility to establish that the underlying costs of any rates, charges, or automatic adjustment charges filed under this chapter are prudent, efficient, and economical and are reasonable and necessary to provide service to the public utility's customers in this state.
Source: SL 2007, ch 269, § 2.
49-34A-9. Deviation from schedules of rates and charges prohibited--Violation as petty offense--Separate offenses.
No public utility may, directly or indirectly, by any device whatsoever or in any manner, charge, demand, collect, or receive from any person a greater or lesser compensation for any service within the jurisdiction of the Public Utilities Commission rendered or to be rendered by such public utility than prescribed in its schedules of rates and charges which have been filed with the commission as provided in this chapter. An intentional violation of this section is a petty offense. After the first judgment, each day's violation is a separate offense.
Source: SL 1975, ch 283, § 4; SL 1983, ch 15, § 141.
49-34A-10. Tariffs and schedules filed by utilities--Public inspection.
Pursuant to rules promulgated under chapter 1-26 by the Public Utilities Commission, every public utility shall file with the commission, within such time and in such form as the commission may designate, tariffs and schedules showing the terms and conditions of service and all rates established by the public utility and collected or enforced, or to be collected or enforced, within the jurisdiction of the commission. The public utility shall keep copies of such tariffs and schedules open to public inspection under such rules as the commission may promulgate. Schedules and tariffs approved by the commission have the force and effect of law.
Source: SL 1970, ch 261, § 31; SDCL Supp, § 49-41-9.2; SL 1975, ch 283, § 3; SL 2004, ch 286, § 1.
49-34A-11. Burden of proving reasonableness of rates.
The burden of proof to show that any rate filed is just and reasonable shall be upon the public utility filing same.
Source: SL 1975, ch 283, § 10.
49-34A-12. Change in rates--Notice to commission and affected customers.
Unless the Public Utilities Commission otherwise orders, no public utility shall change any rate which has been duly established under this chapter, except after thirty days' notice to the commission, which notice shall include statements of facts, expert opinions, substantiating documents, and exhibits, supporting the change requested, and further shall state the change proposed to be made in the rates then in force, and the time when the modified rates will go into effect. The utility shall give written notice of any proposed increase of any rate to all affected customers served by the public utility at least thirty days prior to the effective date thereof. The notice to affected customers shall include a statement that the customer has a right to join with twenty-four other customers and file a written objection to such rate increase and that they may request the commission to suspend the rate increase and to hold a public hearing to determine if such rate increase should be allowed. All proposed changes shall be shown by filing new schedules or shall be plainly indicated upon schedules on file and in force at the time.
Source: SL 1975, ch 283, § 7; SL 1976, ch 296, § 11.
49-34A-13. Hearing on rate changes.
Whenever there is filed with the Public Utilities Commission any schedule modifying or resulting in a change in any rates then in force, together with the filed statements of facts, expert opinions, substantiating documents, and exhibits, supporting the changes requested, the commission may upon complaint or may upon its own motion, upon reasonable notice conduct a hearing to determine whether the rates are just and reasonable.
Source: SL 1975, ch 283, § 8.
49-34A-13.1. Persons permitted to appear before commission or submit comments--Disclosure of identity and interest--Party status controlled by statutes and rules.
Any person may appear before the commission and present comments regarding the proceeding or submit written comments to the commission. The person shall fully and fairly make a full disclosure of identity, the interest of the person in the proceeding, and the position to be taken. The contentions of the person shall be relevant to the issues presented in the proceeding. Any person appearing pursuant to this section is not afforded the status of a party to the proceeding unless the person has been granted party status in accordance with applicable statutes and rules governing intervention in proceedings before the commission.
Source: SL 1976, ch 296, § 15; SL 1994, ch 351, § 136; SL 2015, ch 231, § 2.
49-34A-14. Suspension of proposed rate or practice pending hearing--Time.
Pending a hearing pursuant to § 49-34A-13 and the decision thereon, the commission may, by order, suspend the operation of the proposed rate or practice. The suspension may not last longer than one hundred eighty days after the proposed rate or practice was filed.
Source: SL 1975, ch 283, § 8; SL 2008, ch 242, § 1.
49-34A-16. Delay in effectuation of suspended rate schedule pending disposition of previously filed changes--Time--Violation as petty offense--Separate offenses.
No public utility may put a suspended rate schedule into effect until at least forty-five days after the Public Utilities Commission has made a determination concerning any previously filed change of the rate schedule. An intentional violation of this section is a petty offense. After the first judgment, each day's violation is a separate offense.
Source: SL 1975, ch 283, § 9; SL 1976, ch 296, § 16; SL 1983, ch 15, § 142.
49-34A-17. Implementation of proposed practice, proposed rate, or lower rate--Rate design--Accounts of customer payments--Refund of excess--Time limit.
The public utility may implement the proposed practice, the proposed rate, or a rate lower than the proposed rate if:
(1) The proposed rate or practice has not been suspended or is no longer subject to suspension;
(2) The commission has not issued a final decision; and
(3) Thirty days has passed from the date of filing.
If the public utility implements the proposed rate or a rate lower than the proposed rate, the public utility shall use the same rate design that is currently in effect or the rate design that the public utility proposed when the public utility filed for the increased rate. If the public utility uses a rate design different than the rate design currently in effect or the rate design the public utility proposed when the public utility filed for the increased rate, commission approval is needed prior to implementation.
In the case of a proposed increased rate, the commission may, by order, require the public utility to keep an accurate account in detail of all amounts received by reason of the increase, specifying by whom and in whose behalf the amounts are paid. Upon completion of the hearings and decision, the commission may by further order require the public utility to refund, with interest, to customers, the portion of the increased rates found to be unjust, unreasonable, or discriminatory. The refund shall be carried out as provided in §§ 49-34A-22 and 49-34A-23. If the commission does not issue a final decision within twelve months from the date the proposed rate or practice was filed, the commission may not require a refund of increased rates charged after the twelve months.
Source: SL 1975, ch 283, § 8; SL 1976, ch 296, § 17; SL 1977, ch 392, § 1; SL 2008, ch 242, § 2; SL 2011, ch 209, § 1.
49-34A-19. Costs and revenue considered in determining rates--Acquisition cost of property as alternative--Projected income and expenses.
In determining the rate base upon which the utility is to be allowed to earn a fair rate of return, the Public Utilities Commission shall use the depreciated original cost of the property. However, the commission may alternatively use the full acquisition cost of any property acquired by the utility after the property was first devoted to public use. Full acquisition cost of such property shall be used if:
(1) The utility makes application prior to acquisition;
(2) The commission holds a hearing;
(3) The commission finds that the cost of acquisition is prudently incurred; and
(4) The commission finds that the acquisition will provide benefits to the utility's customers.
In determining the revenue requirement the commission shall consider revenue, expenses, cost of capital and any other factors or evidence material and relevant thereto. The commission may take into consideration the reasonable income and expenses that will be forthcoming in a period of twenty-four months in advance of the test year.
Source: SL 1975, ch 283, § 12; SL 1976, ch 296, § 18; SL 1982, ch 330; SL 1990, ch 375.
49-34A-19.1. Separate accounts required for nonutility business--Profits and losses considered by commission.
Each public utility engaged directly or indirectly in any other business than that of the production, transmission or furnishing of gas or electricity to the public shall, if required by the commission, keep and render separately to the commission the accounts of all such other businesses, in which case all the provisions of this chapter shall apply to the books, accounts, papers, and records of such other business and all profits and losses may be taken into consideration by the commission if deemed relevant to the general fiscal condition of the public utility.
Source: SDCL, § 49-34A-19 as added by SL 1976, ch 296, § 18; SL 1991, ch 386, § 2.
49-34A-19.2. Disallowance for rate purposes of unreasonable profits of affiliates in sales or services to utility.
The Public Utilities Commission, in determining the allowance for materials or services to be included in costs of operations for rate-making purposes, may disallow any unreasonable profit made in the sale of materials to or service supplied for any public utility by any firm or corporation owned or controlled directly or indirectly by such utility or any affiliate, subsidiary, parent company, associate or any corporation whose controlling stockholders are also controlling stockholders of such utility. The burden of proof shall be on the public utility to prove that no unreasonable profit is involved.
Source: SDCL, § 49-34A-19 as added by SL 1976, ch 296, § 18.
49-34A-20. Rate increases not required to prevent competition.
No public utility shall be required to generally increase its rates as to customers of an entire class for the purpose of preventing competition between two public utilities.
Source: SL 1975, ch 283, § 5.
49-34A-21. Determination of rates--Order--Maximum rate--Classification adjustment.
If, after the hearing, the Public Utilities Commission fails to find the rates to be just and reasonable or if the commission finds the rate to be discriminatory, the commission shall determine the level of rates to be charged or applied by the utility for the service in question and shall fix the same by order to be served upon the utility; and the rates are thereafter to be observed until changed, as provided by this chapter. In no event shall the rates exceed the level of rates requested by the public utility. Rate classifications may be adjusted upward or downward by the commission; provided the anticipated receipts will not exceed the amount of return requested.
Source: SL 1975, ch 283, § 11; SL 1976, ch 296, § 19.
49-34A-22. Future rate reduction or credit as alternative to refund of excess charges pending determination on increases.
If, after a suspended schedule has been put into effect pursuant to § 49-34A-17, the rates are finally determined to be excessive, the commission may, as an alternative to ordering an immediate refund, reduce future rates that would otherwise be charged to offset such excessive rates; or as an alternative order that a credit on future electric or gas bills be given to all consumers based on the proportionate electric or gas bills paid by all consumers in the month prior to such order being entered.
Source: SL 1975, ch 283, § 9; SL 1976, ch 296, § 20; SL 1991, ch 386, § 3.
49-34A-23. Action by commission for refund of excess charges pending determination on increase--Costs recovered--Limitation of actions.
If, after a suspended schedule has been put into effect pursuant to § 49-34A-17, the rates are finally determined to be excessive but the public utility fails to make refunds within the period of time prescribed by the Public Utilities Commission, the commission shall sue therefor and is authorized to recover on behalf of all persons entitled to a refund. In addition to the amount of the refund and interest due, the commission shall be entitled to recover reasonable attorney's fees, court costs and estimated cost of administering the distribution of the refund to persons entitled thereto. No suit under this section shall be maintained unless instituted within two years after the end of the period of time prescribed by the commission for repayment of refunds.
Source: SL 1975, ch 283, § 9; SL 1976, ch 296, § 21.
49-34A-24. Municipal taxes on utilities passed on to customers.
If any municipal corporation imposes a sales tax or non ad valorem tax on revenues collected or earnings by any public utility, such public utility shall add the tax collected on to the respective bills to be paid by the various persons purchasing electricity or natural, manufactured, or mixed gas in such municipality.
Source: SL 1975, ch 283, § 17.
49-34A-25. Automatic adjustment of rates for changes in energy, fuel and gas costs, ad valorem taxes paid or commission approved fuel incentives--Revised rate schedule filed by utility--Filing of bond if commission orders--Order of commission--Appeal.
The commission shall permit a public utility to file rate schedules containing provisions for the automatic adjustment of charges for public utility service in direct relation to changes in wholesale rates for energy delivered, the delivered costs of fuel used in generation of electricity, the delivered cost of gas, ad valorem taxes paid, or commission approved fuel incentives. The amended rate schedules shall be filed with the commission on or before the effective date of the change in costs, and if the commission determines that the revised rate schedule is in error, the commission may within ten days of receipt thereof require by order the public utility to file a bond or other security upon such terms and conditions as the commission may require and for such purposes as contained in §§ 49-34A-17 and 49-34A-22. Such rates may go into effect on the date of the change in costs subject to the above refund provisions. Failure of the commission to enter an order in regard thereto shall be deemed approval. The public utility may appeal such order pursuant to and in accordance with § 49-34A-62.
Source: SL 1975, ch 283, § 13; SL 1977, ch 393, § 1; SL 1979, ch 316; SL 1996, ch 276.
49-34A-25.1. Approval of tariff mechanisms for automatic annual adjustment of charges for jurisdictional costs of new or modified transmission facilities.
Notwithstanding any other provision of this chapter, the commission may approve a tariff mechanism for the automatic annual adjustment of charges for the jurisdictional costs of new or modified transmission facilities with a design capacity of thirty-four and one-half kilovolts or more and which are more than five miles in length. For the purposes of §§49-34A-25.1 to 49-34A-25.4, inclusive, electric transmission facilities and electric transmission lines covered by this section include associated facilities such as substations and transformers.
Source: SL 2006, ch 239, § 1.
49-34A-25.2. Approval, rejection, or modification of certain tariffs--Notice and hearing.
Upon filing of an application consistent with rules promulgated by the commission by any public utility providing transmission service, the commission may approve, reject, or modify, after notice, hearing, and comment, a tariff that:
(1) Allows the public utility to recover on a timely basis the costs net of revenues of facilities described in § 49-34A-25.1;
(2) Allows a return on investment at the level approved in the public utility's last general rate case, unless a different return is found to be consistent with the public interest;
(3) Provides a current return on construction work in progress, if the recovery from retail customers for the allowance for funds used during construction is not sought through any other mechanism;
(4) Allocates project costs appropriately between wholesale and retail customers; and
(5) Terminates recovery once costs have been fully recovered or have otherwise been reflected in the public utility's general rates.
Source: SL 2006, ch 239, § 2.
49-34A-25.3. Filing for annual rate adjustments--Contents.
A public utility may file annual rate adjustments to be applied to customer bills paid under the tariff approved pursuant to § 49-34A-25.2. In the utility's filing, the public utility shall provide:
(1) A description of and context for the facilities included for recovery;
(2) A schedule for implementation of applicable projects;
(3) The public utility's costs for these projects;
(4) A description of the public utility's efforts to ensure the lowest reasonable costs to ratepayers for the project; and
(5) Calculations to establish that the rate adjustment is consistent with the terms of the tariff established in § 49-34A-25.2.
Source: SL 2006, ch 239, § 3.
49-34A-25.4. Standards for approval of annual rate adjustments.
Upon receiving a filing under § 49-34A-25.3 for a rate adjustment pursuant to the tariff established in § 49-34A-25.2, the commission shall approve the annual rate adjustments if, after notice, hearing, and comment, the costs included for recovery through the tariff were or are expected to be prudently incurred and achieve transmission system improvements at the lowest reasonable cost to ratepayers.
Source: SL 2006, ch 239, § 4.
49-34A-26. Investigation of rates or services by commission--Notice--Action.
On its own motion or upon a complaint made against any public utility, by the governing body of any political subdivision, by another public utility, or by any twenty-five consumers of the particular utility that any of the rates, tolls, tariffs, charges, or schedules or any joint rate or any regulation, measurement, practice, act or omission affecting or relating to the transmission, delivery or furnishing of natural gas or electricity or any service in connection therewith is in any respect unreasonable, insufficient or unjustly discriminatory, or that any service is inadequate or cannot be obtained, the Public Utilities Commission shall proceed, with notice, to make such investigation as it may deem necessary and take such action as deemed necessary and appropriate.
Source: SL 1975, ch 283, § 14; SL 1976, ch 296, § 22.
49-34A-27. Standards, classifications, regulations or practices fixed by commission--Measuring devices--Quality control--Filing with commission.
The Public Utilities Commission after hearing upon reasonable notice had upon its own motion or upon complaint, may ascertain and fix just and reasonable standards, classifications, regulations or practices to be observed and followed by any or all public utilities with respect to the service, product, or commodity to be furnished; ascertain and fix adequate and reasonable standards for the measurement of the quantity, quality, pressure, initial voltage or other condition pertaining to the supply of such service, product, or commodity; prescribe reasonable regulations for the examination and testing of such service, product, or commodity and for the measurement thereof; establish or approve reasonable rules, regulations, specifications and standards to secure the accuracy of all meters and appliances for measurements; and provide for the examination and testing of any and all appliances used for the measurement of any service, product, or commodity of any public utility. Any standards, classifications, regulations or practices now or hereafter observed or followed by any public utility may be filed with the commission, and the same shall continue in force until amended by the public utility or until suspended or changed by the commission as provided in this chapter.
Source: SL 1975, ch 283, § 15.
49-34A-29. Issue of security or assumption of liability by utility prohibited unless authorized by commission.
No public utility organized under the laws of this state or any public utility organized under the laws of any other state receiving more than twenty-five percent of its gross revenue in this state and which nonresident public utility is not subject to the jurisdiction of the federal power commission in the issuance of its securities shall issue any security, or assume any obligation or liability as guarantor, endorser, surety, or otherwise, in respect of any security of another person, unless and until, and then only to the extent that, upon application by the public utility, the Public Utilities Commission by order authorizes such issue or assumption of liability.
Source: SL 1975, ch 283, § 18; SL 1977, ch 394, § 1.
49-34A-30. Short-term obligations permitted without commission approval--Maximum outstanding.
Section 49-34A-29 shall not apply to the issue or renewal of, or assumption of liability on, a note or draft maturing not more than one year after the date of such issue, renewal, or assumption of liability, and aggregating, together with all other then outstanding notes and drafts of a maturity of one year or less on which such public utility is primarily or secondarily liable, not more than five percentum of the par value of the other securities of the public utility then outstanding. In the case of securities having no par value, the par value for the purpose of this section shall be the fair market value as of the date of issue.
Source: SL 1975, ch 283, § 21.
49-34A-31. Prompt disposition of applications on securities and obligations--Continuance.
All applications to the Public Utilities Commission under the provisions of §§ 49-34A-29 and 49-34A-30 shall be disposed of promptly, and in any event within thirty days after petition is filed with the commission unless, for good cause, it is necessary to continue consideration thereof for a longer period. Whenever such application is continued beyond said thirty-day period the commission shall enter its order effecting such continuance and stating fully therein the facts requiring continuance for a designated period of time.
Source: SL 1975, ch 283, § 22; SL 1976, ch 296, § 23.
49-34A-32. Findings required to permit issue of securities or assumption of obligation.
The Public Utilities Commission shall make an order under § 49-34A-29 only if it finds that an issue or assumption is for some lawful object, within the corporate purposes of the applicant and compatible with the public interest, which is necessary or appropriate for or consistent with the proper performance by the applicant of service as a public utility and which will not impair its ability to perform that service, and is reasonably necessary or appropriate for such purposes.
Source: SL 1975, ch 283, § 18.
49-34A-33. Order permitting issue of securities or assumption of obligations--Supplemental orders.
The Public Utilities Commission, after opportunity for hearing, may grant any application under §§ 49-34A-29 and 49-34A-30 in whole or in part, and with such modifications and upon such terms and conditions as it may find necessary or appropriate, and may from time to time, after opportunity for hearing and for good cause shown, make such supplemental orders in the premises as it may find necessary or appropriate, and may by any such supplemental order modify the provisions of any previous order as to the particular purposes, uses, and extent to which, or the conditions under which, any security so theretofore authorized or the proceeds thereof may be applied, subject always to the requirements of this chapter.
Source: SL 1975, ch 283, § 19; SL 1976, ch 296, § 24.
49-34A-34. Application of security or proceeds in contravention of order prohibited unless commission consents.
No public utility shall, without the consent of the Public Utilities Commission, apply any security or any proceeds thereof to any purpose not specified in the commission's order, or supplemental order, or to any purpose in excess of the amount allowed for such purpose in such order, or otherwise in contravention of such order.
Source: SL 1975, ch 283, § 20.
49-34A-35. Sale, lease, disposition, purchase, merger, or consolidation prohibited unless authorized by commission--Certain transactions excepted.
No public utility, without first being authorized to do so by the commission, may:
(1) Sell, lease, or otherwise dispose of its property or business constituting an operating unit or system in this state to another person;
(2) Sell, lease, or otherwise dispose of its operating property or plant used to provide gas or electric service to its customers in this state to another person;
(3) Purchase the property or business constituting an operating unit or system in this state of another public utility; or
(4) Merge or consolidate with another public utility operating in this state.
However, if the sale, lease, merger, consolidation, or other disposition of the property or business of one public utility to another person, as provided in subdivisions (1) to (4), inclusive, does not involve a sale, lease, merger, consolidation, or disposition wherein the fair market value exceeds ten million dollars, the sale, lease, merger, consolidation, or disposition is not subject to the restrictions of this section.
No person may acquire or gain control either directly or indirectly of any public utility doing business in this state that has a fair market value exceeding ten million dollars without the commission's prior authorization. As used in this section, the term, control, means the right to direct or cause the direction of the management and policies of the public utility, whether through the ownership of voting securities, by contract, or otherwise.
Source: SL 1975, ch 283, § 23; SL 2007, ch 270, § 1.
49-34A-36. Investigation of proposed disposition of property--Time for decision.
Upon the filing of an application for the approval of the commission to an action described in § 49-34A-35, the commission shall investigate the application, with or without public hearing, and in case of a public hearing, upon such notice as the commission may require. The commission shall act on the application within one hundred eighty days and shall approve the proposed action unless the commission finds that there is a likelihood of significant adverse impacts to customers in this state.
Source: SL 1975, ch 283, § 23; SL 2007, ch 270, § 2.
49-34A-37. Purchase of voting stock in other utilities prohibited without commission's consent--Violation as petty offense--Separate offenses.
No public utility subject to the jurisdiction of the commission may purchase voting stock in another public utility doing business in South Dakota without first having made application to and received the approval of the commission within the time and in the manner provided in § 49-34A-36. An intentional violation of this section is a petty offense. After the first judgment, each day's violation is a separate offense.
Source: SL 1975, ch 283, § 24; SL 1983, ch 15, § 143; SL 2007, ch 270, § 3.
49-34A-39. Investigation of condition of public utilities--Hearings.
The Public Utilities Commission upon complaint or on its own initiative and whenever it may deem it necessary in the performance of its duties may investigate and examine the condition and operation of public utilities or any particular public utility. In conducting such investigations, the commission may proceed either with or without a hearing as it may deem best but it shall make no order without affording the parties affected thereby a hearing.
Source: SL 1975, ch 283, § 29.
49-34A-40. Commission access to utility premises to examine, test and inspect--Utility's right to representation--Utilities to cooperate and assist.
The commissioners and the duly authorized officers and employees of the Public Utilities Commission, during business hours, may enter upon any premises occupied by any public utility for the purpose of making examinations and tests and to inspect the accounts, books, papers and documents of any public utility for the purpose of exercising any power provided for in this chapter, and may set up and use on such premises any apparatus and appliance necessary therefor. Such public utility shall have the right to be represented at the making of such examinations, tests and inspections. Such public utility, its officers and employees, shall facilitate such examinations, tests and inspections by giving every reasonable aid to the commissioners and any person or persons designated by the commission for the duties aforesaid. Every public utility shall furnish to the commission upon request all evidence in its possession and all assistance in its power, requested by the commission, to aid it in its determinations.
Source: SL 1975, ch 283, § 27.
49-34A-41. Order for production of utility books and records--Out-of-state records.
The Public Utilities Commission may require, by order served on any public utility in the manner provided in this chapter, for the service of orders, the production within this state at such time and place as it may designate, of any books, accounts, papers, or records of the public utility relating to its business or affairs within the state, pertinent to any lawful inquiry and kept by the public utility in any office or place without this state, or, at its option, verified or photostatic copies in lieu thereof, so that an examination thereof may be made by the commission or under its direction.
Source: SL 1975, ch 283, § 28; SL 1976, ch 296, § 25.
49-34A-42. Electric utility's exclusive rights in assigned service area--Connecting facilities in another area.
Each electric utility has the exclusive right to provide electric service at retail at each and every location where it is serving a customer as of March 21, 1975, and to each and every present and future customer in its assigned service area. No electric utility shall render or extend electric service at retail within the assigned service area of another electric utility unless such other electric utility consents thereto in writing and the agreement is approved by the commission consistent with § 49-34A-55. However, any electric utility may extend its facilities through the assigned service area of another electric utility if the extension is necessary to facilitate the electric utility connecting its facilities or customers within its own assigned service area.
The commission shall have the jurisdiction to enforce the assigned service areas established by §§ 49-34A-42 to 49-34A-44, inclusive, and 49-34A-48 to 49-34A-59, inclusive.
Source: SL 1965, ch 254, §§ 5, 8, 10; SDCL, §§ 49-41-4, 49-41-7, 49-41-9; SL 1970, ch 261, §§ 5, 8, 10; SL 1975, ch 283, § 38; SL 1991, ch 386, § 4.
49-34A-43. Boundaries of assigned service areas--Contracts between utilities--Service areas within municipalities.
The boundaries of each assigned service area, outside of incorporated municipalities, shall be a line equidistant between the electric lines of adjacent electric utilities as they existed on March 21, 1975, provided that these boundaries may be modified by the Public Utilities Commission to take account of natural and other physical barriers which would make service of electric power and energy beyond those barriers economically impractical and shall be modified to take account of the contracts provided for in this section, and provided further that said boundaries shall also be modified by the commission to take into account orders entered before July 1, 1975, by the electric mediation board.
Contracts between electric utilities, which are executed on or before July 1, 1976, designating service areas and customers to be served by the electric utilities approved by the commission shall be valid and enforceable and shall be incorporated into the appropriate assigned service areas. The commission shall approve a contract if it finds that the contract will eliminate or avoid unnecessary duplication of facilities, will provide adequate electric service to all areas and customers affected and will promote the efficient and economical use and development of the electric systems of the contracting electric utilities.
Where a single electric utility provided electric service within a municipality on March 21, 1975, that entire municipality shall constitute a part of the assigned service area of that electric utility. Nothing contained in this chapter shall modify existing rights of municipalities to establish an electric utility. Where two or more electric utilities provided electric service in a municipality on March 21, 1975, the boundaries of the assigned service areas within an incorporated municipality shall be assigned pursuant to the equal distance concept as applied to lines located only within the municipal boundaries.
Source: SL 1965, ch 254, §§ 6, 7, 9; SDCL, §§ 49-41-5, 49-41-6, 49-41-8; SL 1970, ch 261, §§ 6, 7, 9; SL 1975, ch 283, §§ 34 to 36.
49-34A-44. Maps of service areas to be filed by electric utilities--Boundaries assigned by commission order--Adjustment of intertwined service areas--Protest of assigned service areas.
On or before January 1, 1976, or, when requested in writing by an electric utility and for good cause shown, and at a further time as the Public Utilities Commission may fix by order, each electric utility shall file with the commission a map or maps showing all its electric lines outside of incorporated municipalities as they existed on March 21, 1975. Each electric utility shall also submit in writing a list of all municipalities in which it provided electric service on March 21, 1975. Where two or more electric utilities serve a single municipality, the commission may require each utility to file with the commission a map showing its electric lines within the municipality.
On or before July 1, 1976, the commission shall, after notice and hearing, establish the assigned service area or areas of each electric utility and shall prepare or cause to be prepared a map or maps to accurately and clearly show the boundaries of the assigned service area of each electric utility.
In those areas where, on March 21, 1975, the existing electric lines of two or more electric utilities were so intertwined that § 49-34A-43 cannot reasonably be applied, the commission shall, after hearing, determine the boundaries of the assigned service areas for the electric utilities involved. In making its decision, the commission shall be guided by the following conditions as they existed on March 21, 1975:
(1) The proximity of existing distribution lines to such assigned territory, including the length of time such lines have been in existence;
(2) The adequacy and dependability of existing distribution lines to provide dependable, high quality retail electric service;
(3) The elimination and prevention of duplication of distribution lines and facilities supplying such territory;
(4) The willingness and good faith intent of the electric utility to provide adequate and dependable electric service in the area to be assigned;
(5) That a reasonable opportunity for future growth within the contested area is afforded each electric utility.
Any electric utility which feels itself aggrieved by reason of an assignment of a service area may protest such assignment within a ninety-day period after issuance of the map of the assigned service areas by the commission and the commission shall have the power, after hearing, to revise or vacate such assigned service area or portions thereof consistent with the provisions of this section and § 49-34A-43.
Source: SL 1965, ch 254, § 14; SDCL, § 49-41-12; SL 1970, ch 261, § 14; SL 1975, ch 283, §§ 32, 33, 37.
49-34A-45. Payments to municipality from revenues of cooperative providing electric service within municipality.
A rural electric cooperative serving less than a majority of customers in a municipality which does not have a municipally owned system, may, at the option of the municipality, pay in addition to other taxes provided by law, an amount to be agreed upon, not to exceed two percent of the total gross revenue collected by the rural electric cooperative for that year, by the electric supplier and the governing body of the municipality. If the parties have not agreed on the amount on or before May first following the calendar year from which the amount is to be paid, the amount to be paid shall be two percent of the total gross revenue collected by the rural electric cooperative from the sale of power distributed to structures and electric service outlets situated within the municipality. The tax imposed by a municipality pursuant to this section may be passed on to the purchaser. Any revenue received by the rural electric cooperative from the tax imposed by a municipality pursuant to this section that is separately stated on the invoice, bill of sale, or similar document is not considered gross receipts as defined in chapter 10-45, 10-46, or 10-52.
Source: SL 1965, ch 254, § 28; SDCL § 49-41-31; SL 1970, ch 261, § 28; SL 1975, ch 283, § 42 (6); SL 2001, ch 256, § 1; SL 2005, ch 249, § 1; SL 2015, ch 232, § 1.
49-34A-46. Payments to municipality owning electric system from revenues of electric utility operating within municipality.
Any electric utility with facilities within the boundaries of a municipality, as they exist from time to time, which has a municipally owned electric system serving over fifty percent of the customers in the municipality, may, at the option of the municipality, pay to the municipality an amount to be agreed upon by the electric supplier and the governing body of the municipality. If the parties have not agreed on the amount on or before May first following the calendar year from which the amount is to be paid, the amount to be paid shall be four percent of the total gross revenue collected by the electric supplier from the sale of power delivered to structures and electric service outlets situated within the municipality during the year for which the amount is paid. The tax imposed by a municipality pursuant to this section may be passed on to the purchaser. Any revenue received by the electric utility from the tax imposed by a municipality pursuant to this section that is separately stated on the invoice, bill of sale, or similar document is not considered gross receipts as defined in chapter 10-45, 10-46, or 10-52.
Source: SL 1965, ch 254, § 29; SDCL § 49-41-32; SL 1970, ch 261, § 29; SL 1975, ch 283, § 42 (6); SL 2001, ch 256, § 2; SL 2015, ch 232, § 2.
49-34A-47. Time of payments to municipality.
The amounts due in §§ 49-34A-45 and 49-34A-46 shall be paid on or before May second following the end of the calendar year for which the payment is being made.
Source: SL 1965, ch 254, §§ 28, 29; SDCL, §§ 49-41-31, 49-41-32; SL 1970, ch 261, §§ 28, 29; SL 1975, ch 283, § 42 (6).
49-34A-48. Electric utility's right to continue service in area annexed to municipality.
The inclusion by incorporation, consolidation, or annexation of any part of the assigned service area of an electric utility within the boundaries of any municipality shall not in any respect impair or affect the rights of the electric utility to continue and extend electric service at retail throughout any part of its assigned service area unless a municipality which owns and operates an electric utility elects to purchase the facilities and property of the electric utility as provided in §§ 49-34A-49 to 49-34A-55, inclusive.
Source: SL 1965, ch 254, § 10; SDCL, § 49-41-9; SL 1970, ch 261, § 10; SL 1975, ch 283, § 41.
49-34A-49. Municipal offer to purchase electric facilities in annexed area.
Notwithstanding the provisions of § 49-34A-42, whenever a municipality which owns and operates an electric utility extends its corporate boundaries through annexation or consolidation, such municipality shall either offer to purchase any electric utility properties and service rights within the annexed areas owned by any electric utility, or permit such utility to serve and expand in the annexed area, as provided in this chapter. The municipality shall notify the affected electric utility in writing of the boundaries of the annexed area and shall indicate such area on appropriate maps.
Source: SL 1975, ch 283, § 42.
49-34A-50. Purchase price for electric facilities in area annexed by municipality.
If a municipality described by § 49-34A-49 elects to purchase, the municipality shall, within one year following annexation, offer to purchase the electric distribution properties of the utility located within the annexed area, together with all of the utility's rights to serve within such area, for a cash consideration which shall consist of the present-day reproduction cost, new, of the facilities being acquired, less depreciation computed on a straight-line basis; plus an amount equal to the cost on a nonbetterment basis of constructing any necessary facilities to reintegrate the system of the utility outside the annexed area after detaching the portion to be sold; plus as compensation for service rights, an annual amount equal to the sum of twenty-five percent of the gross revenues received from power sales to consumers of electric power within the annexed area. The obligation of the annexing municipality to compensate the utility for service rights shall continue for eleven years from the date of the offer to purchase by the annexing municipality. During the eleven-year period, compensation for service rights to any one customer location within the annexed area shall be paid by the annexing municipality for a period of seven years or until the expiration of the eleven-year period, whichever is less. Gross revenues received shall be determined by applying the rate in effect by the municipality at the time of purchase.
Source: SL 1975, ch 283, § 42 (2); SL 1992, ch 330, § 1; SL 2009, ch 239, § 1.
49-34A-51. Application for determination by commission of price for municipal purchase of electric facilities in annexed area.
In the event the municipality and the electric utility involved are unable to agree as to the amount of the payment specified in § 49-34A-50, the municipality or the electric utility may file an application with the Public Utilities Commission requesting that the commission, after notice and hearing, determine the amount of the payment in accordance with the provisions of § 49-34A-50.
Source: SL 1975, ch 283, § 42 (3).
49-34A-52. Acknowledgment by utility of municipal offer to purchase facilities in annexed area--Obligations of parties.
The electric utility, within ninety days after receipt of an offer by the annexing municipality to purchase the utility's electric distribution properties and service rights within the annexed area, shall signify in writing its acknowledgment of the offer, and the parties shall proceed to act. The annexing municipality shall then be obligated to buy and pay for, and the utility shall be obligated to sell to the municipality such properties and rights free and clear of all mortgage liens and encumbrances for the aforesaid cash consideration computed and payable as provided in § 49-34A-50.
Source: SL 1975, ch 283, § 42 (4).
49-34A-53.1. Purchase of facilities in territory annexed after July 1, 1975--Time limit--Determination of gross revenue.
Any municipality that has annexed territory subsequent to July 1, 1975, and that did not elect to purchase the facilities in such territory pursuant to the provisions of §§ 49-34A-49 to 49-34A-52, inclusive, may, within two years from July 1, 1992, elect to purchase the facilities in such annexed territory subject to the provisions of §§ 49-34A-49 and 49-34A-50, except that gross revenues received shall be determined by applying the rate in effect by the purchasing municipality at the time of purchase. Any municipality which chooses not to purchase such facilities within the two-year period is precluded from thereafter purchasing such facilities, except pursuant to the provisions of § 49-34A-55.
Source: SL 1992, ch 330, § 3.
49-34A-54. Purchase by utility of areas disannexed by municipality.
If any annexing municipality shall contract its boundaries so as to exclude from its corporate limits any territory, the utility may elect within sixty days thereafter to purchase from such municipality and such municipality shall, notwithstanding any other laws, thereupon sell and convey to the utility the electric distribution properties and service rights of the municipality in any part of the excluded area which the said electric utility had previously served; upon the same procedures set forth in §§ 49-34A-50 to 49-34A-52, inclusive.
Source: SL 1975, ch 283, § 42 (7).
49-34A-55. Sale or exchange of rights and property allowed between municipalities and utilities.
Nothing contained in §§ 49-34A-42 to 49-34A-44, inclusive, and 49-34A-48 to 49-34A-57, inclusive, prohibits electric utilities from buying, selling, or exchanging electric distribution properties, service rights and other rights, property, and assets by mutual agreement, subject to approval of the commission. Any agreement, pursuant to this section, which changes assigned service areas shall be filed and approved by the commission before it may become effective. The commission's approval of such agreements shall be based on the public interest. The factors to consider shall include the elimination or avoidance of unnecessary duplication of facilities, providing adequate electric service to all areas and customers affected, and the promotion of the efficient and economical use and development of the electric systems of the contracting electric utilities.
Source: SL 1975, ch 283, § 42 (8); SL 1991, ch 386, § 5.
49-34A-56. Large new customers not required to take service from assigned utility--Notice and hearing by commission--Factors considered.
Notwithstanding the establishment of assigned service areas for electric utilities provided for in §§ 49-34A-43 and 49-34A-44, new customers at new locations which develop after March 21, 1975, located outside municipalities as the boundaries thereof existed on March 21, 1975, and who require electric service with a contracted minimum demand of two thousand kilowatts or more shall not be obligated to take electric service from the electric utility having the assigned service area where the customer is located if, after notice and hearing, the Public Utilities Commission so determines after consideration of the following factors:
(1) The electric service requirements of the load to be served;
(2) The availability of an adequate power supply;
(3) The development or improvement of the electric system of the utility seeking to provide the electric service, including the economic factors relating thereto;
(4) The proximity of adequate facilities from which electric service of the type required may be delivered;
(5) The preference of the customer;
(6) Any and all pertinent factors affecting the ability of the utility to furnish adequate electric service to fulfill customers' requirements.
Source: SL 1975, ch 283, § 44.
49-34A-57. Extension of lines to serve utility's or municipality's own property.
Notwithstanding the provisions in §§ 49-34A-43 and 49-34A-44, any electric utility may extend electric lines for electric service to its own utility property and facilities. A municipally owned electric utility may also extend its electric lines to serve its own public service facilities such as water and sewage systems, landfills and airports.
Source: SL 1975, ch 283, § 44.
49-34A-58. Adequacy of service determined by commission--Notice and hearing--Order to correct inadequacy--Transfer of rights on failure to comply.
The Public Utilities Commission may, after a hearing had upon due notice, make such findings as may be supported by proof as to whether any electric utility operating in an assigned territory is rendering or proposes to render adequate service to a customer, and in the event the commission finds that such electric utility is not rendering or does not propose to render adequate service, the commission may enter an order specifying in what particular said electric utility has failed to render or to propose to render adequate service in order that such failure be corrected within a reasonable time, such time to be fixed in such order. If the electric utility so ordered to correct such failure fails to comply with such order, the commission may authorize another electric utility to furnish retail service to such customer.
Source: SL 1975, ch 283, § 39.
49-34A-59. Notice and hearing on violation of service area provisions--Time for decision.
Upon the filing of an application under § 49-34A-58 or upon complaint by an affected utility that the provisions of §§ 49-34A-42 to 49-34A-57, inclusive, have been violated, the commission shall, after notice and opportunity for hearing, issue its decision within sixty days after the filing of the application or complaint. The commission may extend the time for a decision if requested by a party to the proceeding and the commission finds good cause to grant the extension.
Source: SL 1975, ch 283, § 40; SL 2010, ch 223, § 1.
49-34A-61. Burden of proof on party seeking to modify or vacate commission order.
In all proceedings before the Public Utilities Commission in which the modification or vacation of any order of the commission is sought, the burden of proof shall be on the person seeking such modification or vacation.
Source: SL 1975, ch 283, § 50.
49-34A-61.1. Rehearings--Application--Grant or refusal--Time--Orders not stayed unless commission directs.
Any party, as defined in the rules and regulations promulgated by the Public Utilities Commission, to a proceeding before the commission may within thirty days after the entry of the order apply for a rehearing. The commission shall either grant or refuse an application for hearing within thirty days after the filing of the application. A failure by the commission to act upon such application for rehearing within the period shall be deemed a refusal thereof. Neither the filing of an application for rehearing nor the granting thereof shall stay the effectiveness of an order unless the commission so directs.
Source: SL 1976, ch 296, § 26.
49-34A-62. Parties entitled to rehearings and appeals--Procedure.
Persons or corporations entitled to and procedures for a rehearing on, or an appeal from, commission decisions and orders shall be those specified in chapter 1-26.
Source: SL 1965, ch 254, § 23; SDCL, § 49-41-24; SL 1970, ch 261, § 23; SL 1975, ch 283, §§ 30, 46; SL 1976, ch 296, § 27.
49-34A-65. Bond required when stay or suspension granted--Other security in addition or in lieu--Refund of increase not allowed on appeal.
Notwithstanding § 1-26-32, in case an order of the Public Utilities Commission is stayed or suspended, the court shall require a bond with good and sufficient surety, conditioned that the utility or any other party petitioning for review shall answer for all damages caused by the delay in enforcing the order of the commission and for all compensation for the difference between whatever sums for transmission or service any person is compelled to pay pending review proceedings and the sum the person or corporation would have been compelled to pay had the commission's order not been stayed or suspended. The court may, in addition or in lieu of the bond, require other further security for the payment of the excess damages or charges it deems proper. If a party other than a utility appeals from the decision of the commission, the commission may by further order require such utility to refund, with interest, the portion, if any, of an increase which is not allowed by the final decision of the courts after all appeals are concluded.
Source: SL 1975, ch 283, § 47; SL 1981, ch 338.
49-34A-66. Violation of law or commission order--Civil penalty.
Any person who intentionally violates any provision of this chapter, or who intentionally fails, omits, or neglects to obey, observe, or comply with any lawful order, or any part or provision thereof, of the Public Utilities Commission shall be subject to a civil penalty of not less than one hundred dollars nor more than one thousand dollars for each violation.
Source: SL 1975, ch 283, § 51; SL 1983, ch 15, § 144; SL 1983, ch 331, § 13.
49-34A-67. Each violation or day's continuation as separate offense.
Every violation of the provisions of this chapter or of any lawful order of the Public Utilities Commission, or any part or portion thereof by any person, is a separate and distinct offense, and in case of a continuing violation after a first conviction thereof each day's continuation thereof shall be deemed to be a separate and distinct offense.
Source: SL 1975, ch 283, § 52.
49-34A-68. Penalties cumulative--Single action does not bar other remedies.
All penalties accruing under this chapter shall be cumulative, and a suit for the recovery of one penalty shall not be a bar to or affect the recovery of any other penalty or forfeiture or be a bar to any criminal prosecution against any utility or any officer, director, agent, or employee thereof or any person.
Source: SL 1975, ch 283, § 53.
49-34A-69. Commission to refer violations to attorney general.
Whenever the Public Utilities Commission shall be of the opinion that any person is failing or omitting or is about to fail or omit to do anything required of it by the provisions of this chapter or by any order of the commission, or is doing anything or about to do anything, or permitting anything or about to permit anything to be done, contrary to or in violation of this chapter or of any order of the commission, it shall refer the matter to the attorney general who shall take appropriate legal action.
Source: SL 1975, ch 283, § 48.
49-34A-70. Preference on calendar for proceedings under chapter.
All actions and proceedings under this chapter, and all actions or proceedings to which the Public Utilities Commission or the State of South Dakota may be parties, and in which any question arises under this chapter, or under or concerning any order or decision of the commission, shall be preferred over all other civil causes, except election causes, irrespective of position on the calendar.
Source: SL 1975, ch 283, § 49.
49-34A-71. Chapter complete--Laws in conflict repealed.
This chapter shall be complete in itself and no other South Dakota statute shall be construed as applicable to the supervision or regulations of electric utilities by the Public Utilities Commission. Any law of this state in conflict with this chapter is hereby repealed insofar as it shall pertain to the regulation of electric utilities as defined in this chapter.
Source: SL 1975, ch 283, § 54.
49-34A-72. Commission participation in federal proceedings--Recovery of expenses.
If the commission intervenes or otherwise participates in rate, certificate, or related proceedings before a federal agency and the commission's intervention or participation results, after final litigation, in a refund in wholesale rates to a public utility serving customers in South Dakota, the commission shall be reimbursed from the amount refunded to the South Dakota public utility in an amount equal to the litigation expenses reasonably incurred by the commission. The litigation expenses shall include reasonable attorney's fees, expert witness fees, and all other associated costs. The commission may assess the public utility for the amount of the reimbursement provided for in this section, and the reimbursement assessed shall be deposited in the commission's gross receipts tax fund established pursuant to § 49-1A-2.
Source: SL 1983, ch 342; SL 1991, ch 381, § 14; SL 1994, ch 352, § 8.
49-34A-73. Phase in rate plan for rate increases due to plant additions.
Notwithstanding anything in this chapter to the contrary, an electric utility that is subject to rate regulation by the commission and plans plant additions that are expected to have a material impact on rates may make application to the commission for a phase in rate plan to provide for the phase in of expected rate increases resulting from plant additions. The plan may provide for any of the following:
(1) Rate increases to be incrementally phased in prior to the commencement of commercial operation of the plant additions;
(2) To the extent rate increases for plant additions are allowed prior to commercial operation, restrictions on the capitalization of allowance for funds used during construction for the plant additions;
(3) Restrictions on other rate increases; and
(4) Any other conditions which benefit the public interest and may be imposed by the commission consistent with the findings in § 49-34A-74.
Source: SL 1992, ch 331, § 1; SL 2012, ch 230, § 2; SL 2015, ch 233, § 1.
49-34A-73.1. Plant additions defined.
For purposes of §§ 49-34A-73 to 49-34A-78, inclusive, plant additions are investments in fixed generation, transmission, and distribution assets, whether purchased or constructed, including operations and maintenance expenses directly related to those fixed assets, real property, and new power purchases.
Source: SL 2012, ch 230, § 1.
49-34A-74. Approval of phase in rate plan--Conditions.
The commission may approve a phase in rate plan as provided in § 49-34A-73 if:
(1) The electric utility makes application for a phase in rate plan prior to the commencement of or during construction, or prior to acquisition of the plant additions;
(2) The electric utility files with the application a full cost of service analysis as required for general rate increases including a projection of costs and revenue requirements to the date of the anticipated commercial operation of the plant additions or through the term of the new power purchases;
(3) The commission affords an opportunity for a hearing with notice given as required for any rate increase; and
(4) The commission finds that the phase in rate plan is likely to enhance adequate utility service, rate stability, the financial stability of the electric utility, reasonable capital costs, just and reasonable rates, a fair rate of return, and other considerations that benefit the public interest.
Source: SL 1992, ch 331, § 2; SL 2012, ch 230, § 3; SL 2015, ch 233, § 2.
49-34A-75. Review of reasonableness of rates under phase in rate plan--Adjustment.
At any time prior to one year after the conclusion of a phase in rate plan, the commission, upon its own motion or upon petition of the electric utility, may examine the reasonableness of the utility's rates under the plan, and adjust rates as necessary. Any phase in rate plan is subject to annual review. The electric utility shall file annually an abbreviated cost of service analysis showing that year's revenues, costs and revenue requirements, and a report of the progress of the construction or acquisition of the plant additions showing accumulative construction or acquisition costs for the year and updated cost projections to complete the plant additions.
Source: SL 1992, ch 331, § 3; SL 2012, ch 230, § 4.
49-34A-76. Filing of general rate case after end of phase in rate plan--Exception.
Within twelve months after the end of the phase in rate plan, the electric utility shall file a general rate case with a full cost of service analysis including the plant additions, unless, upon motion, the commission determines that a general rate case would not be likely to result in material changes to the rates in place under the phase in rate plan, in which event the rates under the phase in rate plan will remain in effect until changed by further order of the commission.
Source: SL 1992, ch 331, § 4; SL 2012, ch 230, § 5.
49-34A-77. Filing fee for phase in rate plan.
Upon filing an application for a phase in rate plan, the electric utility shall pay a filing fee to be determined by the commission in an amount not to exceed two hundred fifty thousand dollars. The filing fee may also be used for any annual reviews pursuant to § 49-34A-75.
Source: SL 1992, ch 331, § 5; SL 1994, ch 352, § 11; SL 2012, ch 230, § 6.
49-34A-78. Nonapproval of application for phase in rate plan.
If the commission does not approve an application for a phase in rate plan as defined in § 49-34A-73, the electric utility may not be prohibited from making, acquiring, or constructing plant additions and requesting and obtaining rate adjustments as authorized by this chapter.
Source: SL 1992, ch 331, § 6; SL 2012, ch 230, § 7.
49-34A-79. Public or electric utilities authorized to remove certain obstructions.
Any public utility or electric utility as defined in § 49-34A-1 and any utility operated by any political subdivision of the state may remove or alter any vegetation or other material if the utility determines that such removal or alteration is reasonably necessary for the safe repair, use, operation, or maintenance of the utility's electric or gas transmission or distribution lines.
Source: SL 1999, ch 229, § 1.
49-34A-80. Certain commercial small power production facilities subject to 49-34A-80 to 49-34A-92.
Any commercial small power production facility, utilizing renewable resources, such as sun, wind, geothermal, or biomass, that begins generating electricity after June 30, 2001, produces ten megawatts or less of electricity as measured by nameplate rating, and is located within one county and owned by a natural person, corporation, nonprofit or for profit business organization, or tribal council (if the facility is located outside the boundaries of the reservation), irrigation district, drainage district, or other political subdivision or agency of the state authorized by statute to carry on the business of developing, transmitting, utilizing, or distributing electric power is subject to the provisions of §§ 49-34A-80 to 49-34A-92, inclusive, for any new or expanded facility.
Source: SL 2001, ch 257, § 1.
49-34A-82. Definitions.
Terms used in §§ 49-34A-80 to 49-34A-92, inclusive, mean:
(1) "Department," the Department of Revenue;
(2) "New or expanded facility," a new commercial small power production facility as defined in § 49-34A-80 or an addition to an existing commercial small power production facility, the construction or installation of which is subject to contractors' excise tax pursuant to chapter 10-46A or 10-46B;
(3) "Project," the installation or construction of the first ten megawatts of generation capacity of a new or expanded facility;
(4) "Project cost," the amount paid in money for a project;
(5) "Secretary," the secretary of the Department of Revenue.
Source: SL 2001, ch 257, § 3; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
49-34A-83. Refund or credit of certain taxes for construction of certain power production facilities.
Any person may apply for and obtain a refund or credit for contractors' excise taxes imposed and paid under the provisions of chapter 10-46A or 10-46B for the construction of a new or expanded facility that is a commercial small power production facility that is defined in § 49-34A-80.
Source: SL 2001, ch 257, § 4.
49-34A-84. Requirements for refund.
The refund pertains only to project costs incurred and paid after July 1, 2001. The refund pertains only to project costs that were incurred and paid within thirty-six months of the approval of the application required by §§ 49-34A-80 to 49-34A-92, inclusive. No refund may be made unless:
(1) The project costs exceed five hundred thousand dollars; and
(2) The person applying for the refund obtains a permit from the secretary as set forth in § 49-34A-86.
Source: SL 2001, ch 257, § 5.
49-34A-85. Amount of refund.
The amount of the tax refund shall be one hundred percent of the contractor's excise taxes attributed to the project cost, excluding any associated transmission facilities.
Source: SL 2001, ch 257, § 6.
49-34A-86. Application for refund--Refund claim not assignable--Exception.
Any person desiring to claim a refund pursuant to §§ 49-34A-80 to 49-34A-92, inclusive, shall apply for a permit from the secretary at least thirty days prior to commencement of the project. The application for a permit shall be submitted on a form prescribed by the secretary. A separate application shall be made and submitted for each project. Upon approval of the application, the secretary shall issue a permit entitling the applicant to submit refund claims as provided by §§ 49-34A-80 to 49-34A-92, inclusive. The permit or refund claims are not assignable or transferable except as collateral or security pursuant to chapter 57A-9.
Source: SL 2001, ch 257, § 7.
49-34A-87. Secretary to prescribe form and documentation requirements.
Any claim for refund shall be submitted on forms prescribed by the secretary and shall be supported by such documentation as the secretary may require. The secretary may deny any claim where the claimant has failed to provide information or documentation requested or considered necessary by the secretary to determine the validity of the claim.
Source: SL 2001, ch 257, § 8.
49-34A-88. Deadline for submitting claim for refund--Department to withhold percentage of refund.
Any claim for refund shall be submitted to the department on or before the last day of the month following each quarterly period. The secretary shall determine the amount of the tax refund. Ninety percent of the amount of refund shall be paid to the claimant in accordance with §§ 10-59-22 and 10-59-23, and ten percent shall be withheld by the department. No interest shall be paid on the refund amount.
Source: SL 2001, ch 257, § 9.
49-34A-89. Withheld amounts paid at completion of project.
The amounts withheld by the department in accordance with § 49-34A-88 shall be retained until the project has been completed and the claimant has met all the conditions of §§ 49-34A-80 to 49-34A-92, inclusive, at which time all sums retained shall be paid to claimant.
Source: SL 2001, ch 257, § 10.
49-34A-90. Fraudulent claim--Refunded sums constitute lien in favor of state.
If any claim has been fraudulently presented or supported as to any item in the claim, or if the claimant fails to meet all the conditions of §§ 49-34A-80 to 49-34A-92, inclusive, then the claim may be rejected in its entirety and all sums previously refunded to the claimant shall constitute a debt to the state and a lien in favor of the state upon all property and rights to property whether real or personal belonging to the claimant and may be recovered in an action of debt.
Source: SL 2001, ch 257, § 11.
49-34A-91. Right to hearing on denial of refund claim.
Any person aggrieved by the denial in whole or in part of a refund claimed under §§ 49-34A-80 to 49-34A-92, inclusive, may within thirty days after service of the notice of a denial by the secretary, demand and is entitled to a hearing, upon notice, before the secretary. The hearing shall be conducted pursuant to chapter 1-26.
Source: SL 2001, ch 257, § 12.
49-34A-92. Promulgation of rules.
The secretary may promulgate rules, pursuant to chapter 1-26, concerning the procedures for filing refund claims and the requirements necessary to qualify for a refund.
Source: SL 2001, ch 257, § 13.
49-34A-93. Implementation of and compliance with certain federal energy acts.
The commission may implement and comply with the provisions of the Public Utility Regulatory Policies Act of 1978, as amended to January 1, 2009, the Energy Policy Act of 2005, and the Energy Independence and Security Act of 2007 and may promulgate rules pursuant to chapter 1-26 consistent with these acts. The commission may implement policies or promulgate rules to establish the following:
(1) Standards requiring a public utility to offer each of the utility's customer classes, and provide individual customers upon customer request, a time-based rate schedule under which the rate charged by the electric utility varies during different time periods and reflects the variance, if any, in the utility's costs of generating and purchasing electricity at the wholesale level;
(2) Standards requiring a public utility to make interconnection service available on request to any electric customer that the utility serves;
(3) Standards requiring a public utility to develop a plan to minimize dependence on one fuel source and to ensure that the electric energy it sells to consumers is generated using a diverse range of fuels and technologies, including renewable technologies;
(4) Standards requiring a public utility to develop and implement a ten-year plan to increase the efficiency of its fossil fuel generation;
(5) Standards or policies requiring a public utility to integrate energy efficiency resources into the utility's planning process and to adopt policies establishing cost-effective energy efficiency as a priority resource;
(6) Standards or policies allowing a public utility's rates to align utility incentives with the delivery of cost-effective energy efficiency and promote energy efficiency investments;
(7) Standards or policies requiring prior to investing in nonadvanced grid technologies, that a public utility consider investing in a smart grid system; and
(8) Standards or policies requiring public utilities to provide smart grid information regarding electricity prices, usage, and sources of power to customers.
Any order adopted by the commission prior to January 1, 2006, pursuant to these acts, is hereby validated.
Source: SL 2006, ch 240, § 1; SL 2009, ch 240, § 1.
49-34A-94. Renewable electricity and recycled energy defined.
For the purposes of §§ 49-34A-94 to 49-34A-96, inclusive, renewable electricity and recycled energy include electricity generated from facilities using one or more of the following sources:
(1) Wind that uses wind as the source of energy to produce electricity;
(2) Solar that uses the sun as the source of energy to produce electricity;
(3) Hydroelectric that uses water as the source of energy to produce electricity;
(4) Hydrogen that is generated from one of the sources listed in this section;
(5) Biomass that uses agricultural crops and agricultural wastes and residues, wood and wood wastes and residues, animal and other degradable organic wastes, municipal solid waste, or landfill gas as the fuel to produce electricity;
(6) Geothermal that uses energy contained in heat that continuously flows outward from the earth as the source of energy to produce electricity; and
(7) Recycled energy systems that produce electricity from currently unused waste heat resulting from combustion or other processes and which do not use an additional combustion process. The term does not include any system whose primary purpose is the generation of electricity.
Source: SL 2006, ch 241, § 1; SL 2007, ch 271, § 1; SL 2008, ch 243, § 1.
49-34A-95. Renewable energy credits for electricity authorized.
The commission may establish, or allow participation in, a system of renewable energy credits for electricity generated from renewable electricity or recycled energy. A renewable energy credit system shall track, record, and verify the trading of credits for electricity generated from renewable electricity and recycled energy sources among electric generators, utilities, and other interested entities within the state and with similar entities in other states. Sections 49-34A-94 to 49-34A-96, inclusive, apply to any provider of electricity that generates electricity from renewable electricity or recycled energy.
Source: SL 2006, ch 241, § 2.
49-34A-96. Promulgation of rules regarding renewable energy credit system.
The commission may promulgate rules pursuant to chapter 1-26 concerning:
(1) Requirements for tracking, recording, and verifying the trading of renewable energy credits;
(2) Requirements for compliance with a renewable energy credit system;
(3) Requirements for certification of renewable energy credits;
(4) Requirements for participation in a regional system that relates to renewable energy credits; and
(5) Requirements regarding the eligibility of a provider of electricity generated from renewable electricity or recycled energy to participate in the system.
Source: SL 2006, ch 241, § 3.
49-34A-97. Approval of tariff mechanisms for automatic annual adjustment of charges for environmental improvements.
Notwithstanding any other provisions of this chapter, the commission may approve a tariff mechanism for the automatic annual adjustment of charges for the jurisdictional capital costs and operating expenses incurred by a public utility for environmental improvements to its existing electric generation facilities. For the purposes of §§ 49-34A-97 to 49-34A-100, inclusive, environmental improvements include any requirements under the Clean Air Act, the Clean Water Act, or any other federal law or rule, or any state law or rule implementing a federal law or rule, or voluntary environmental measures designed to protect the environment.
Source: SL 2007, ch 272, § 1.
49-34A-98. Approval, rejection, or modification of certain electric service tariffs.
Upon filing of an application consistent with rules promulgated by the commission by any public utility providing electric service, the commission may approve, reject, or modify, after notice and opportunity for hearing, a tariff that:
(1) Allows the public utility to recover on a timely basis the costs and expenses net of revenues of environmental improvements described in § 49-34A-97;
(2) Allows a return on investment at the level approved in the public utility's last general rate case, unless a different return is found to be consistent with the public interest;
(3) Provides a current return on construction work in progress, if the recovery from retail customers for the allowance for funds used during construction is not obtained through any other mechanism;
(4) Allocates project costs and expenses appropriately between wholesale and retail customers; and
(5) Terminates recovery once costs and expenses have been fully recovered or have otherwise been reflected in the public utility's general rates.
Source: SL 2007, ch 272, § 2.
49-34A-99. Annual rate adjustment filings for certain electric service tariffs.
A public utility may file annual rate adjustments to be applied to customer bills paid under the tariff approved pursuant to § 49-34A-98. In the utility's filing, the public utility shall provide:
(1) A description of and context for the costs and expenses of environmental improvements included for recovery;
(2) A schedule for implementation of applicable projects;
(3) The public utility's costs and expenses for these projects;
(4) A description of the public utility's efforts to ensure the lowest reasonable costs to ratepayers for the project;
(5) Calculations to establish that the rate adjustment is consistent with the terms of the tariff established in § 49-34A-98; and
(6) Other information requested by the commission.
Source: SL 2007, ch 272, § 3.
49-34A-100. Approval, rejection, or modification of annual rate adjustment.
Upon receiving filing under § 49-34A-99 for a rate adjustment pursuant to the tariff established in § 49-34A-98, the commission may approve, reject, or modify the annual rate adjustment after notice and opportunity for hearing. In making its decision, the commission shall consider whether the costs and expenses included for recovery through the tariff were or are expected to be prudently incurred, will achieve environmental improvements at the lowest reasonable cost to ratepayers, and will allow the public utility to recover costs consistent with its allowed return on equity. To the extent the environmental improvement may affect the following, the commission may also consider whether the environmental improvement is likely to enhance adequate utility service, rate stability, the financial stability of the public utility, reasonable capital costs, just and reasonable rates, a fair rate of return, and other considerations that benefit the public interest.
Source: SL 2007, ch 272, § 4.
49-34A-101. State renewable, recycled, and conserved energy objective established.
There is hereby established a state renewable, recycled, and conserved energy objective that ten percent of all electricity sold at retail within the state by the year 2015 be obtained from renewable, recycled, and conserved energy sources. In the case of renewable and recycled energy, the objective shall be measured by qualifying megawatt hours delivered at retail or by certificates representing credits purchased and retired to offset nonqualifying retail sales. In the case of conserved energy, the objective shall be measured by methods established by rules promulgated by the commission pursuant to chapter 1-26. This objective is voluntary, and there is no penalty or sanction for a retail provider of electricity that fails to meet this objective. The objective applies to each retail provider of electricity in the state, regardless of the ownership status of the electricity retailer. Any municipal or cooperative utility that receives wholesale electricity through a municipal power agency or generation and transmission cooperative may aggregate the utility's renewable, recycled, and conserved energy objective resources to meet this objective.
Source: SL 2008, ch 244, § 1; SL 2009, ch 241, § 1.
49-34A-102. Qualifications for meeting renewable, recycled, and conserved energy objective.
Electricity qualifies for meeting the state renewable, recycled, and conserved energy objective if the source meets the requirements of §§ 49-34A-94 to 49-34A-96, inclusive, and the commission's rules for tracking, recording, and verifying renewable energy certificates. Electricity also qualifies for meeting the state renewable, recycled, and conserved energy objective if the source is conserved energy and meets the requirements established by rules promulgated by the commission pursuant to chapter 1-26.
Source: SL 2008, ch 244, § 2; SL 2009, ch 241, § 2.
49-34A-103. Calculation of amount of electricity from renewable, recycled, and conserved energy source.
For the purpose of calculating the amount of electricity from a renewable, recycled, and conserved energy source needed to meet the state renewable and recycled energy objective, a retail provider may deduct from the provider's baseline of total retail sales the proportion of electricity obtained from a hydroelectric facility with an inservice date before July 1, 2008.
Source: SL 2008, ch 244, § 3; SL 2009, ch 241, § 3.
49-34A-104. Evaluation of use as reasonable and cost effective.
Before using new renewable, recycled, and conserved energy after July 1, 2008, to meet the objective, the retail provider or the provider's generation supplier shall make an evaluation to determine if the use of new renewable, recycled, and conserved energy is reasonable and cost effective considering other electricity alternatives. After making such an evaluation and considering the state renewable, recycled, and conserved energy objective, the retail provider or the provider's generation supplier may use the electricity alternative that best meets the provider's resource or customer needs.
Source: SL 2008, ch 244, § 4; SL 2009, ch 241, § 4.
49-34A-105. Annual reports concerning renewable, recycled, and conserved energy objective.
Beginning on July 1, 2009, each retail provider shall annually report to the commission on the provider's energy sales during the twelve month period ending on the preceding December thirty-first. This report shall include information regarding qualifying electricity delivered and renewable and recycled energy certificates purchased and retired as a percentage of annual retail sales, the amount of conserved energy as a percentage of annual retail sales, and a brief narrative report that describes steps taken to meet the state renewable, recycled, and conserved energy objective over time and identifies any challenges or barriers encountered in meeting the objective. The last annual report shall be made on July 1, 2017. The commission shall make the data and narrative reports available and accessible to the public on the internet. The commission shall compile the data obtained from the reports and submit the data to the Legislature by the following January first. A distribution cooperative may aggregate the cooperative's reporting through generation and transmission cooperatives and a municipal utility may aggregate the utility's reporting through a municipal power agency.
Source: SL 2008, ch 244, § 5; SL 2009, ch 241, § 5.
49-34A-106. Purchase and retirement of renewable energy and recycled energy credits.
A portion or all of the renewable energy and recycled energy objective may be met by the purchase and retirement of renewable energy and recycled energy certificates representing credits from a qualified source and facility pursuant to §§ 49-34A-101 to 49-34A-106, inclusive. Renewable energy and recycled energy certificates do not need to be acquired from an in-state facility.
Source: SL 2008, ch 244, § 6.
49-34A-107. Separation and protection of assets of gas and electric utilities.
Unless the commission otherwise orders:
(1) A public utility shall hold all owned or operated public utility assets in one or more legal entities separate and segregated from the legal entities of any nonutility subsidiaries or affiliates;
(2) All secured debt of a public utility may be used only for public utility purposes. If more than twenty percent of a public utility's secured assets are divested, the debt shall follow the assets or be retired in the same proportion as the divested assets; and
(3) No public utility may extend credit to any of its nonutility subsidiaries or affiliates, pledge the assets of the public utility as collateral for the use or benefit of any of its nonutility subsidiaries or affiliates, or guarantee any debt or obligations of any of its nonutility subsidiaries or affiliates.
Any public utility which does not comply with the provisions of this section shall have two years within which to become compliant. Notwithstanding any provision of this section, after notice and opportunity for hearing, the commission may grant a waiver of any provision of this section if the commission finds a waiver would not pose an undue risk to the operation of the public utility and is in the public interest.
Source: SL 2008, ch 245, § 1.
49-34A-108. Electric utility to file rates for purchases of electricity produced by small renewable power facilities.
Each electric utility shall file with the commission the electric utility's minimum rates for purchases of electricity generated from renewable resources, as defined by § 49-34A-94, and produced by a small renewable power facility that has a capacity of one hundred kilowatts or less. Except for a public utility's standard avoided cost rates set pursuant to the Public Utility Regulatory Policies Act of 1978, as amended to January 1, 2010, a rate filed under this section is not subject to commission approval.
Source: SL 2010, ch 224, § 1.
49-34A-109. Definitions.
Terms used in §§ 49-7A-15, 43-13-25, and 49-34A-109 to 49-34A-111, inclusive, mean:
(1) "Farm tap," a natural gas piping connection to an interstate or intrastate transmission pipeline, that is made available to a farm tap customer;
(2) "Farm tap customer," a person who receives natural gas through a farm tap distribution system;
(3) "Farm tap distribution system," a customer owned pipeline system that extends from an interstate or intrastate transmission pipeline to deliver natural gas to a farm tap customer; and
(4) "Farm tap service provider," any third party provider of farm tap distribution system services to:
(a) A farm tap customer; or
(b) An interstate or intrastate natural gas transmission pipeline holding one or more farm tap easements.
Source: SL 2017, ch 197, § 1.
49-34A-110. Responsibility for safety and reliability of farm tap distribution system.
The farm tap customer is responsible for the safety and reliability of the farm tap distribution system, unless the farm tap customer has contracted with or transferred ownership of his farm tap distribution system to a farm tap service provider pursuant to a written agreement which expressly transfers the responsibility for the safety and reliability of the farm tap distribution system to the farm tap service provider.
Source: SL 2017, ch 197, § 3.
49-34A-111. Liability of farm tap service provider.
The farm tap service provider is not liable for damages related to or arising out of a farm tap or a farm tap distribution system, unless the damages are solely caused by the negligence of the farm tap service provider.
Source: SL 2017, ch 197, § 4.
49-34A-116. Electric vehicle charging station--Electric utility--Exception.
A person that owns or operates an electric vehicle charging station to resell or provide electricity to the public exclusively for electric vehicle charging is not an electric utility if the person has purchased the electricity from an electric utility that is engaging in the retail sale of electricity within the utility's assigned service area.
Source: SL 2022, ch 171, § 1.
CHAPTER 49-34B
PIPELINE SAFETY
49-34B-1 Definition of terms.
49-34B-2 49-34B-2. Repealed by SL 2018, ch 267, § 1.
49-34B-3 Pipeline safety inspection program created--Compliance program.
49-34B-4 Promulgation of safety standards--Considerations.
49-34B-5 Noncompliance--Hearing--Corrective action.
49-34B-6 Plan for inspection and maintenance of facility--Inadequate plan--Hearing--Revision.
49-34B-7 Required records and information--Inspection by employee or agent of commission.
49-34B-8 Programs for prevention of damage.
49-34B-9 Inspection fee for intrastate operators--Recovery of unreasonable fees--Pipeline safety account established.
49-34B-10 Calculating inspection fee for intrastate operators.
49-34B-11 Initial inspection fee for intrastate operators--Filing objection--Delinquency fee--Fees credited to pipeline safety account.
49-34B-12 Civil penalty for violations--Maximum penalties--Penalties credited to pipeline safety account--Interstate facilities exempt.
49-34B-13 Conduct in violation of federal act--Authority of commission to pursue remedies.
49-34B-14 Commission as agent of United States Department of Transportation in regulating interstate pipelines.
49-34B-15 Designation of commission's inspectors as federal agents.
49-34B-16 Inspection fee for interstate operators--Objections to fee--Fees deposited in pipeline safety account.
49-34B-17 Calculation of interstate operator's inspection fee.
49-34B-18 Initial inspection fee for interstate operators--Filing objections--Hearings--Delinquency fee.
49-34B-19 Promulgation of inspection and safety rules.
49-34B-20 Promulgation of rules for calculation, assessment, and collection of fees.
49-34B-21 Accident report available in judicial proceedings.
49-34B-22 Trade secrets information confidential.
49-34B-23 Acceptance of federal moneys.
49-34B-24 Waiver of compliance with standards--Reasons to be stated.
49-34B-25 Damaging or tampering with sign or line markers prohibited--Violation as misdemeanor.
49-34B-26 Prohibition against disposing of, destroying or altering pipeline involved in emergency release--Violation as felony.
49-34B-27 Powers of commission in enforcement of chapter.
49-34B-1. Definition of terms.
Terms used in this chapter mean:
(1) "Commission," the Public Utilities Commission;
(2) "Emergency release," a release of a quantity of gas that is great enough to pose a clear and immediate danger to life, health, environment, or that threatens a significant loss of property;
(3) "Gas," natural gas, liquefied natural gas, flammable gas, gas which is toxic or corrosive, or liquefied petroleum gas in distribution systems;
(4) "Gas pipeline," all parts of those physical facilities through which gas moves in transportation, including pipe, valves, and other appurtenances attached to pipe, compressor units, metering stations, regulator stations, delivery stations, holders, and fabricated assemblies;
(5) "Gas pipeline facilities," new and existing pipelines, rights-of-way, master meter systems, pipeline facilities within this state which transport gas from an interstate gas pipeline to a direct sales customer within this state purchasing gas for its own consumption, and any equipment, facility, or building used in the transportation of gas or in the treatment of gas during the course of transportation;
(6) "Inspection fee," any fee assessed to pipeline operators based on the expenses and obligations incurred by the commission in implementing and administering this chapter;
(7) "Intrastate pipeline," any pipeline or that part of a pipeline to which this part applies that is not an interstate pipeline;
(8) "Interstate pipeline," pipeline facilities used in the transportation of gas which are subject to the jurisdiction of the Federal Energy Regulatory Commission under the Natural Gas Act, United States Code, Title 15, sections 717 to 717z, inclusive, as amended to January 1, 2023, except that it does not include any pipeline facilities within this state which transport gas from an interstate gas pipeline to a direct sales customer within this state purchasing gas for its own consumption;
(9) "Liquefied natural gas," natural gas or synthetic gas having methane (CH4) as its major constituent that has been changed to a liquid or semisolid;
(10) "Master meter system," any pipeline system for distributing gas within a definable area, such as a mobile home park, housing project, or apartment complex, where the operator purchases metered gas from an outside source for resale through a gas distribution pipeline system and the gas distribution pipeline system supplies the ultimate consumer who either purchases the gas directly through a meter or by other means, such as by rents;
(11) "Pipeline operator," any person who owns or operates a pipeline;
(12) "Release," a spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, leaching, dumping, disposing, flowing, or any uncontrolled escape of a gas from a pipeline; and
(13) "Transportation of gas," the gathering, transmission, or distribution of gas by pipeline or the storage of gas.
Source: SL 1994, ch 357, § 1; SL 1995, ch 264, § 1; SL 2007, ch 273, § 1; SL 2009, ch 242, § 1; SL 2010, ch 225, § 1; SL 2011, ch 210, § 1; SL 2012, ch 231, § 1; SL 2016, ch 226, § 1; SL 2019, ch 199, § 1; SL 2023, ch 158, § 1.
49-34B-3. Pipeline safety inspection program created--Compliance program.
There is created a pipeline safety inspection program. The federal safety standards adopted as Code of Federal Regulations, title 49 appendix, parts 191, 192, 193, and 199 as amended to January 1, 2023, are adopted as minimum safety standards for this chapter. The commission shall establish and implement a compliance program to enforce these safety standards. The program shall be established and implemented in a manner that fully complies with requirements for state certification under the United States Code, title 49, section 60105, as amended to January 1, 2023.
Source: SL 1994, ch 357, § 2; SL 1995, ch 264, § 2; SL 1997, ch 268, § 2; SL 1999, ch 230, § 2; SL 2001, ch 258, § 2; SL 2003, ch 240, § 2; SL 2005, ch 247, § 2; SL 2007, ch 273, § 3; SL 2009, ch 242, § 3; SL 2010, ch 225, § 3; SL 2011, ch 210, § 3; SL 2012, ch 231, § 3; SL 2016, ch 226, § 3; SL 2019, ch 199, § 2; SL 2021, ch 201, § 1; SL 2023, ch 158, § 2.
49-34B-4. Promulgation of safety standards--Considerations.
The commission may, by rules promulgated pursuant to chapter 1-26, establish safety standards, but not more stringent than federal safety standards as provided by § 49-34B-3, for the intrastate transportation of gas and gas pipeline facilities. The standards may apply to the design, installation, inspection, testing, construction, extension, operation, replacement, and maintenance of gas pipeline facilities. Standards affecting the design, installation, construction, initial inspection, and initial testing do not apply to pipeline facilities in existence on the date the standards are adopted by either this state or the federal government. The safety standards shall be practicable and designed to meet the need for pipeline safety. In prescribing the standards, the commission shall consider:
(1) Relevant available pipeline safety data;
(2) Whether the standards are appropriate for the particular type of pipeline transportation of gas;
(3) The reasonableness of any proposed standards;
(4) The extent to which the standard will contribute to public safety; and
(5) The existing standards established by the secretary of the United States Department of Transportation pursuant to the United States Code, title 49, section 60101 et seq. as amended to January 1, 2023.
Source: SL 1994, ch 357, § 3; SL 1995, ch 264, § 3; SL 1997, ch 268, § 3; SL 1999, ch 230, § 3; SL 2001, ch 258, § 3; SL 2003, ch 240, § 3; SL 2005, ch 247, § 3; SL 2007, ch 273, § 4; SL 2009, ch 242, § 4; SL 2010, ch 225, § 4; SL 2011, ch 210, § 4; SL 2012, ch 231, § 4; SL 2016, ch 226, § 4; SL 2019, ch 199, § 3; SL 2021, ch 201, § 2; SL 2023, ch 158, § 3.
49-34B-5. Noncompliance--Hearing--Corrective action.
Any person who engages in the intrastate transportation of gas or who owns or operates intrastate gas pipeline facilities shall at all times after the effective date of any applicable safety standard established under this chapter comply with the requirements of the standard. If the commission finds, after notice and opportunity for hearing, that a person has failed to comply with any applicable safety standard, the commission may order the person to take necessary corrective action to comply with the standard. Corrective action may include suspended or restricted use of the facility, physical inspection, testing, repair, replacement, or other action, as appropriate. The commission may issue an order without notice and opportunity for hearing if the commission determines that to do otherwise would result in the likelihood of serious harm to life, health, environment, or property. The commission shall include in such an order an opportunity for hearing as soon as practicable after issuance of the order.
Source: SL 1994, ch 357, § 4.
49-34B-6. Plan for inspection and maintenance of facility--Inadequate plan--Hearing--Revision.
The commission may require any person who engages in the intrastate transportation of gas or who owns or operates intrastate gas pipeline facilities subject to the provisions of this chapter to file with the commission a plan for inspection and maintenance of each such facility owned or operated by the person, and any changes in the plan, in accordance with the rules promulgated by the commission pursuant to chapter 1-26. On finding that the plan is inadequate to achieve safe operation, the commission shall, after notice and opportunity for a hearing, require the plan to be revised. In determining the adequacy of the plan, the commission shall consider:
(1) Relevant available pipeline safety data;
(2) Whether the plan is appropriate for the particular type of pipeline transportation of gas;
(3) The reasonableness of the plan; and
(4) The extent to which the plan will contribute to public safety.
Source: SL 1994, ch 357, § 5.
49-34B-7. Required records and information--Inspection by employee or agent of commission.
Any person who engages in the intrastate transportation of gas or who owns or operates intrastate gas pipeline facilities shall establish, maintain, and provide such records, reports, and information as the commission may require to determine whether the person has complied with the provisions of this chapter and the standards established under this chapter. Any such person shall, upon request of an employee or agent authorized by the commission, permit the employee or agent to inspect facilities, books, papers, records, and documents relevant to determining whether the person has complied with this chapter and the standards established pursuant to this chapter. Any employee or agent of the commission, upon presenting appropriate credentials to the individual in charge, may enter upon and inspect gas pipeline facilities at reasonable times and in a reasonable manner.
Source: SL 1994, ch 357, § 6.
49-34B-8. Programs for prevention of damage.
The commission shall encourage and promote programs designed to prevent damage to natural gas pipeline facilities as a consequence of demolition, excavation, tunneling, or construction activity.
Source: SL 1994, ch 357, § 7.
49-34B-9. Inspection fee for intrastate operators--Recovery of unreasonable fees--Pipeline safety account established.
From each pipeline operator subject to the intrastate pipeline inspection authority under this chapter, the commission shall assess and collect an inspection fee in an amount calculated according to § 49-34B-10. To the extent it has jurisdiction, the commission shall allow the operator full rate recovery of inspection fees. The inspection fee shall be assessed annually. The operator may, within thirty days after the assessment is mailed, file written objections with the commission stating the grounds upon which it claims that the assessment is not reasonable. The commission shall within thirty days of receiving such objections hold a hearing and issue an order in accordance with its findings as to the proper amount to be assessed to the operator. The order may be appealed pursuant to chapter 1-26. If an operator does not pay, or object to, the fee within thirty days after the assessment was mailed, the commission may impose a delinquency fee of ten percent of the inspection fee and interest at the rate of fifteen percent per year on the portion of the fee not paid. Fees collected under this section shall be credited to the pipeline safety account which is hereby established in the state treasury. Any interest earned on money in the fund shall be deposited in the fund. The money is continuously appropriated to the use of the commission to implement and administer the provisions of this chapter.
Source: SL 1994, ch 357, § 8; SL 2007, ch 273, § 5.
49-34B-10. Calculating inspection fee for intrastate operators.
For each inspection fee assessed to intrastate gas pipeline operators, the commission shall calculate its total actual expenses and obligations incurred in implementing and administering this chapter. All expenses directly attributable to specific intrastate pipeline facilities shall be directly charged to the appropriate pipeline operators on an annual basis. For all expenses not directly attributable to intrastate gas distribution facilities, the commission shall assess each pipeline operator for a pro rata share of the expenses and obligations based on the number of meters in service on the preceding December thirty-first. For all expenses not directly attributable to intrastate gas transmission and gathering facilities, the commission shall assess each pipeline operator for a pro rata share of the expenses and obligations based on the percentage of total miles to be inspected that are or will be operated by each pipeline operator. For all expenses not directly attributable to intrastate liquefied petroleum gas facilities, the commission shall assess each pipeline operator for a pro rata share of expenses and obligations based on the percentage of total miles to be inspected that are or will be operated by each pipeline operator, until the commission adopts a rule providing for metered billing of facilities carrying liquefied petroleum gas.
Source: SL 1994, ch 357, § 9; SL 2007, ch 273, § 6.
49-34B-11. Initial inspection fee for intrastate operators--Filing objection--Delinquency fee--Fees credited to pipeline safety account.
An initial inspection fee shall be assessed on July 1, 1994, to all intrastate gas pipeline operators. The initial inspection fee is one hundred thousand dollars and shall be prorated among all intrastate gas pipeline operators based on their number of meters or miles of line, whichever is applicable, which are in service on December 31, 1993. To the extent it has jurisdiction, the commission shall allow the operator full rate recovery of the initial inspection fee. The operator may, within thirty days after the assessment is mailed, file written objections with the commission stating the grounds upon which it claims that the assessment is not reasonable. The commission shall within thirty days of receiving such objections hold a hearing and issue an order in accordance with its findings as to the proper amount to be assessed to the operator. The order may be appealed pursuant to chapter 1-26. If an operator does not pay, or object to, the initial inspection fee within thirty days after the assessment was mailed, the commission may impose a delinquency fee of ten percent of the initial inspection fee and interest at the rate of fifteen percent per year on the portion of the fee not paid. Fees collected under this section shall be credited to the pipeline safety account established in § 49-34B-9. Any interest earned on money in the fund shall be deposited in the fund. The money is continuously appropriated to the use of the commission to implement and administer the provisions of this chapter.
Source: SL 1994, ch 357, § 10.
49-34B-12. Civil penalty for violations--Maximum penalties--Penalties credited to pipeline safety account--Interstate facilities exempt.
Any person who violates any provision of this chapter or any rule promulgated pursuant to this chapter is subject to a civil penalty to be imposed by the commission, after notice and opportunity for hearing. The civil penalty may not exceed two hundred thousand dollars for each violation each day that the violation persists, except that the maximum civil penalty may not exceed two million dollars for any related series of violations. In determining the amount of the penalty upon finding a violation, or the amount of a compromise settlement, the commission shall consider the appropriateness of the penalty to the size of the business of the person charged, the gravity of the violation, prior offenses and compliance history, the good faith of the person charged in attempting to achieve compliance, and such other matters as justice may require. All penalties collected pursuant to this chapter shall be deposited in the state treasury to the credit of the pipeline safety account, established pursuant to § 49-34B-9. This section does not apply to interstate gas pipeline facilities.
Source: SL 1994, ch 357, § 11; SL 2012, ch 231, § 5; SL 2019, ch 199, § 4.
49-34B-13. Conduct in violation of federal act--Authority of commission to pursue remedies.
No person is subject to civil penalties under this chapter if prior civil penalties have been imposed under the United States Code, title 49, section 60101 et seq. as amended to January 1, 2023, for conduct that may give rise to a violation of both acts. Nothing in this chapter limits the powers of the commission, or precludes the pursuit of any other administrative, civil, injunctive, or criminal remedies by the commission or any other person. Administrative remedies need not be exhausted in order to proceed under this chapter. The remedies provided by this chapter are in addition to those provided under existing statutory or common law.
Source: SL 1994, ch 357, § 12; SL 1995, ch 264, § 4; SL 1997, ch 268, § 4; SL 1999, ch 230, § 4; SL 2001, ch 258, § 4; SL 2003, ch 240, § 4; SL 2005, ch 247, § 4; SL 2007, ch 273, § 7; SL 2009, ch 242, § 5; SL 2010, ch 225, § 5; SL 2011, ch 210, § 5; SL 2012, ch 231, § 6; SL 2016, ch 226, § 5; SL 2019, ch 199, § 5; SL 2021, ch 201, § 3; SL 2023, ch 158, § 4.
49-34B-14. Commission as agent of United States Department of Transportation in regulating interstate pipelines.
The commission may, to the extent authorized by agreement with the secretary of the United States Department of Transportation, act as agent for the secretary of transportation to implement the United States Code, title 49, section 60101 et seq. as amended to January 1, 2023, and any federal pipeline safety regulations promulgated thereto with respect to interstate gas pipelines located within this state, as necessary to obtain annual federal certification. The commission shall, to the extent authorized by federal law, inspect pipelines in the state as authorized by the provisions of this chapter.
Source: SL 1994, ch 357, § 13; SL 1995, ch 264, § 5; SL 1997, ch 268, § 5; SL 1999, ch 230, § 5; SL 2001, ch 258, § 5; SL 2003, ch 240, § 5; SL 2005, ch 247, § 5; SL 2007, ch 273, § 8; SL 2009, ch 242, § 6; SL 2010, ch 225, § 6; SL 2011, ch 210, § 6; SL 2012, ch 231, § 7; SL 2016, ch 226, § 6; SL 2019, ch 199, § 6; SL 2021, ch 201, § 4; SL 2023, ch 158, § 5.
49-34B-15. Designation of commission's inspectors as federal agents.
The commission may seek and accept federal designation of the commission's pipeline inspectors as federal agents for the purposes of inspection pursuant to the United States Code, title 49, section 60101 et seq. as amended to January 1, 2023, and federal rules adopted to implement those acts. If the Department of Transportation delegates inspection authority to the state as provided in this section, the commission shall do what is necessary to carry out its delegated federal authority.
Source: SL 1994, ch 357, § 14; SL 1995, ch 264, § 6; SL 1997, ch 268, § 6; SL 1999, ch 230, § 6; SL 2001, ch 258, § 6; SL 2003, ch 240, § 6; SL 2005, ch 247, § 6; SL 2007, ch 273, § 9; SL 2009, ch 242, § 7; SL 2010, ch 225, § 7; SL 2011, ch 210, § 7; SL 2012, ch 231, § 8; SL 2016, ch 226, § 7; SL 2019, ch 199, § 7; SL 2021, ch 201, § 5; SL 2023, ch 158, § 6.
49-34B-16. Inspection fee for interstate operators--Objections to fee--Fees deposited in pipeline safety account.
From each pipeline operator subject to the interstate pipeline inspection authority granted under this chapter, the commission shall assess and collect an inspection fee in an amount calculated under § 49-34B-17. The inspection fee shall be assessed annually. The operator may, within thirty days after the assessment is mailed, file written objections with the commission stating the grounds upon which it claims that the assessment is not reasonable. The commission shall within thirty days of receiving such objections hold a hearing and issue an order in accordance with its findings as to the proper amount to be assessed to the operator. The order shall be appealable pursuant to chapter 1-26. If an operator does not pay, or object to, the fee within thirty days after the assessment is mailed, the commission may impose a delinquency fee of ten percent of the inspection fee and interest at the rate of fifteen percent per year on the portion of the fee not paid. Fees collected under this section shall be deposited in the pipeline safety account established in § 49-34B-9. Any interest earned on money in the fund shall be deposited in the fund. The money is continuously appropriated to the use of the commission to implement and administer the provisions of this chapter.
Source: SL 1994, ch 357, § 15; SL 2007, ch 273, § 10.
49-34B-17. Calculation of interstate operator's inspection fee.
For each inspection fee assessed to interstate gas pipeline operators, the commission shall calculate its total actual expenses and obligations incurred in implementing and administering this chapter. All expenses directly attributable to specific interstate gas pipeline facilities shall be directly charged to the appropriate pipeline operators on an annual basis. For all expenses not directly attributable to interstate pipeline facilities, the commission shall assess each pipeline operator for a pro rata share of the expenses and obligations based on the percentage of the total miles of pipeline to be inspected that are operated or will be operated by each pipeline operator.
Source: SL 1994, ch 357, § 16; SL 2007, ch 273, § 11.
49-34B-18. Initial inspection fee for interstate operators--Filing objections--Hearings--Delinquency fee.
Upon certification as a federal agent, the commission shall assess an initial inspection fee upon all interstate gas pipeline operators. The initial inspection fee is based on the commission's estimated costs of its first six months of operation as a federal agent. The initial inspection fee shall be prorated based on each interstate gas pipeline operator's total miles of line located within this state. The operator may, within thirty days after the assessment is mailed, file written objections with the commission stating the grounds upon which it claims that the assessment is not reasonable. The commission shall within thirty days of receiving such objections hold a hearing and issue an order in accordance with its findings as to the proper amount to be assessed to the operator. The order shall be appealable pursuant to chapter 1-26. If an operator does not pay, or object to, the initial inspection fee within thirty days after the assessment is mailed, the commission may impose a delinquency fee of ten percent of the initial inspection fee and interest at the rate of fifteen percent per year on the portion of the initial inspection fee not paid. Fees collected under this section shall be deposited in the pipeline safety account established in § 49-34B-9. Any interest earned on money in the fund shall be deposited in the fund. The money is continuously appropriated to the use of the commission to implement and administer the provisions of this chapter.
Source: SL 1994, ch 357, § 17.
49-34B-19. Promulgation of inspection and safety rules.
The commission may promulgate pipeline inspection and safety rules, pursuant to chapter 1-26, to the extent necessary to enable the state to qualify for annual federal certification to operate the federal pipeline inspection program of intrastate and interstate gas pipelines as authorized by the United States Code, title 49, section 60101 et seq. as amended to January 1, 2023.
Source: SL 1994, ch 357, § 18; SL 1995, ch 264, § 7; SL 1997, ch 268, § 7; SL 1999, ch 230, § 7; SL 2001, ch 258, § 7; SL 2003, ch 240, § 7; SL 2005, ch 247, § 7; SL 2007, ch 273, § 12; SL 2009, ch 242, § 8; SL 2010, ch 225, § 8; SL 2011, ch 210, § 8; SL 2012, ch 231, § 9; SL 2016, ch 226, § 8; SL 2019, ch 199, § 8; SL 2021, ch 201, § 6; SL 2023, ch 158, § 7.
49-34B-20. Promulgation of rules for calculation, assessment, and collection of fees.
The commission may promulgate rules pursuant to chapter 1-26 governing the calculation, assessment, and collection of the fees imposed in §§ 49-34B-9 to 49-34B-11, inclusive, and 49-34B-16 to 49-34B-18, inclusive.
Source: SL 1994, ch 357, § 19.
49-34B-21. Accident report available in judicial proceedings.
Any accident report related to pipeline safety made by an employee or agent of the commission is available for use in any civil, criminal, or other judicial proceeding arising out of the accident. The employee or agent may be required to testify in the proceedings as to the facts developed in the investigation. A report made available to the public need not identify individuals. Any report on research projects, demonstration projects, and other related activities is public information.
Source: SL 1994, ch 357, § 20.
49-34B-22. Trade secrets information confidential.
All information reported to or obtained by the commission under this chapter that contains or relates to a trade secret referred to in United States Code, title 18, section 1905, as amended to January 1, 2023, or that is granted by chapter 37-29 is confidential for the purpose of that section, except that the information may be disclosed to the commission or commission employee or agent concerned with enforcing this chapter. Nothing in this section authorizes the withholding of information by the commission from a committee of the Legislature.
Source: SL 1994, ch 357, § 21; SL 1997, ch 268, § 8; SL 1999, ch 230, § 8; SL 2001, ch 258, § 8; SL 2003, ch 240, § 8; SL 2005, ch 247, § 8; SL 2007, ch 273, § 13; SL 2009, ch 242, § 9; SL 2010, ch 225, § 9; SL 2011, ch 210, § 9; SL 2012, ch 231, § 10; SL 2016, ch 226, § 9; SL 2019, ch 199, § 9; SL 2023, ch 158, § 8.
49-34B-23. Acceptance of federal moneys.
The commission may accept any moneys made available to this state by the United States of America or any department or agency thereof with respect to prescribing, setting, and enforcing rules and safety standards for the transportation of natural and other gas by pipelines in accordance with federal law. Any moneys received shall be credited to the pipeline safety account, established pursuant to § 49-34B-9. The commission may do anything not contrary to the laws of this state or required of this state by federal law in order to obtain such federal money.
Source: SL 1994, ch 357, § 22.
49-34B-24. Waiver of compliance with standards--Reasons to be stated.
Upon application by any person engaged in the transportation of gas or the operation of pipeline facilities, the commission may, after notice and opportunity for hearing and under such terms and conditions and to such extent as the commission deems appropriate, waive in whole or in part compliance with any standards established pursuant to this chapter, on determining that a waiver of compliance with such standard is not inconsistent with gas pipeline safety. The commission shall state the reasons for any such waiver.
Source: SL 1994, ch 357, § 23.
49-34B-25. Damaging or tampering with sign or line markers prohibited--Violation as misdemeanor.
No person may deface, mar, damage, remove, injure, displace, destroy, or tamper with any sign or line marker marking the location of a pipeline. Any person violating the provisions of this section is guilty of a Class 2 misdemeanor.
Source: SL 1994, ch 357, § 24.
49-34B-26. Prohibition against disposing of, destroying or altering pipeline involved in emergency release--Violation as felony.
After an emergency release from a pipeline has occurred, no pipeline operator, or its employee or agent, may dispose of, destroy, or alter the part of a pipeline that was involved in the emergency release until approval is granted by the commission. This section does not prevent an operator from taking appropriate action to limit or prevent the further release of gas. The authority of the commission to grant approval may not be delegated.
This section may not be construed to prevent the excavation and removal from the ground of a pipeline or part of a pipeline if the pipeline is not intentionally altered in a manner that prevents or hinders a determination of the cause of the emergency release. A person who knowingly violates the provisions of this section, or who denies the commission access to the pipeline for the purposes of inspection, is guilty of a Class 5 felony.
Source: SL 1994, ch 357, § 25.
49-34B-27. Powers of commission in enforcement of chapter.
The commission may, to the extent necessary to carry out the enforcement responsibilities of this chapter, conduct investigations, make reports, issue subpoenas, conduct hearings, require the production of relevant documents and records, take depositions, and conduct research, testing, development, demonstration, and training activities.
Source: SL 1994, ch 357, § 26.
CHAPTER 49-34C
BIOGAS GATHERING LINES SAFETY
49-34C-1 Definition of terms.
49-34C-2 Operation of biogas lines--Written notice--Contents of notice.
49-34C-3 Operation of biogas lines--Required signage.
49-34C-4 Failure to comply--Interruption of operation.
49-34C-5 Failure to comply--Misdemeanor.
49-34C-1. Definition of terms.
Terms used in this chapter mean:
(1) "Biogas gathering line," new and existing gathering pipeline facilities in South Dakota that transport gas from a bio-methane producer to an interstate or intrastate gas pipeline;
(2) "Commission," the Public Utilities Commission;
(3) "Gas," natural gas, liquefied natural gas, flammable gas, gas which is toxic or corrosive, or liquefied petroleum gas in distribution systems.
Source: SL 2022, ch 172, § 1.
49-34C-2. Operation of biogas lines--Written notice--Contents of notice.
Any person who operates an intrastate biogas gathering line shall prior to operation provide written notice of the location and existence of the biogas gathering line to:
(1) Any county and township where the biogas gathering line is located;
(2) The county emergency management office or county equivalent in those counties;
(3) Any fire department or ambulance service located within ten miles of the biogas gathering line;
(4) South Dakota One-Call;
(5) The Commission;
(6) All landowners of record who own land within six hundred and sixty feet of the biogas gathering line.
All notices must warn of the hazards and dangers associated with the biogas gathering line and its contents.
Source: SL 2022, ch 172, § 2.
49-34C-3. Operation of biogas lines--Required signage.
Any person who operates a biogas gathering line on an easement or in public right of way must place and maintain signage marking the biogas gathering line for the life of the biogas gathering line. Signage must be in the rights-of-way and placed at all public road crossings and railroad crossings and in sufficient numbers so that the biogas gathering line location is accurately and easily known. Signage must prominently display the operator’s name, a twenty-four-hour emergency telephone number for the operator, the word, warning, or danger, and the phrase, biogas pipeline. Prior to commencement of operation, the operator shall certify to the Commission that the operator has completed the requirements of this chapter.
Source: SL 2022, ch 172, § 3.
49-34C-4. Failure to comply--Interruption of operation.
If the Commission finds, after notice and opportunity for hearing, that a person has failed to comply with any requirement of this chapter, the Commission may suspend or restrict the operation of the pipeline and may order the person to comply with this chapter. The Commission may issue a temporary ex parte order to suspend or restrict operation if the Commission determines a likelihood of immediate serious harm to life, health, environment, or property exists. The operator has the right of appeal from such decisions as provided by chapter 1-26. The Commission may apply to the circuit court in any county in which the biogas gathering line operates for orders that enjoin operation.
Source: SL 2022, ch 172, § 4.
49-34C-5. Failure to comply--Misdemeanor.
Any person who operates a biogas gathering line other than in compliance with this chapter is guilty of a Class 1 misdemeanor and is subject to a civil penalty of not more than ten thousand dollars.
Source: SL 2022, ch 172, § 5.
49-35-1
Definitions.
49-35-2
Purpose of district.
49-35-3
District as public corporation and political subdivision--Capacity to sue and be
sued--General powers.
49-35-4
Composition of district--Division of municipalities prohibited--Districts within
districts.
49-35-5
Procedure for creation of district.
49-35-6
Rural areas--Petition to clerk of courts.
49-35-7
Contents of petition.
49-35-8
Signatories to petition--Basis for computing minimum required signatures--Information in addition to signatures.
49-35-9
Affidavit by circulator of petition.
49-35-10
Issuance of certificate of filing of petition.
49-35-11 to 49-35-14. Repealed.
49-35-15
Submission to electors--Procedure for conducting election.
49-35-16
Certification of election returns.
49-35-17
Annexation of additional territory--Consolidation of districts--Petitions--Election.
49-35-18 to 49-35-26. Repealed.
49-35-27
Amendment of petition to change name or principal place of business--Changing number of directors--Changes authorized by directors.
49-35-28, 49-35-29. Repealed.
49-35-30
Amendment of petition for creation of district--Effective date of amendment.
49-35-31
Repealed.
49-35-32
Citation of chapters.
49-35-1. Definitions.
Terms used in chapters 49-35 to 49-40, inclusive, unless the context otherwise plainly requires, shall mean:
(1) "Consumers power district" or "district" means a district organized under this chapter or as the same may be from time to time altered or extended under the terms of this chapter;
(2) "Governing body" means the duly constituted legislative body or governing authority within and for a municipality or rural area;
(3) "Municipality" means an incorporated city or town;
(4) "Plant" or "system" means any and all property owned, used, or operated, or useful for operation, in the generation by means of water power, steam, or any means, or the transmission, distribution, sale or purchase of electrical energy for any and every useful purpose, as defined herein, which may be owned, leased, used or operated in conjunction with such power plant or system;
(5) "Power" means any and all electrical energy generated, distributed, bought or sold for purposes of lighting, heating, power, and any and every other purpose whatsoever;
(6) "Rural area" means any territory outside of a municipality.
Source: SL 1950 (SS), ch 17, § 3; SDC Supp 1960, § 52.1703.
49-35-2. Purpose of district.
Nonprofit, public service, utility districts may be organized under this chapter for the purpose of supplying electric energy and encouraging and extending the use thereof within or without the State of South Dakota.
Source: SL 1950 (SS), ch 17, § 2; SDC Supp 1960, § 52.1702; SL 1989, ch 403, § 1.
49-35-3. District as public corporation and political subdivision--Capacity to sue and be sued--General powers.
A district may be created as provided in this chapter, and when so created, shall be a public corporation and political subdivision of this state, and may sue or be sued in its corporate name, and have all other powers in chapters 49-35 to 49-40, inclusive, or hereafter prescribed by law and those incidental or necessary thereto.
Source: SL 1950 (SS), ch 17, § 4; SDC Supp 1960, § 52.1704.
49-35-4. Composition of district--Division of municipalities prohibited--Districts within districts.
A consumers power district may be composed of the territory of one or more municipalities or rural areas as defined in this chapter, whether contiguous or otherwise, but no municipality or voting precinct shall be divided in the formation of a district. Nothing in chapters 49-35 to 49-40, inclusive, shall be construed to prevent the organization of a district within, or partly within, the territorial boundaries of another district organized hereunder, so long as the plants and systems and the operation of the same, the exercise of powers, and the assumption of duties and responsibilities, of or on the part of one such district, do not nullify, substantially conflict with, or materially affect those of, or on the part of, another such district.
Source: SL 1950 (SS), ch 17, § 4; SDC Supp 1960, § 52.1704.
49-35-5. Procedure for creation of district.
A consumers power district may be created only by election and the procedure as provided in this chapter.
Source: SL 1950 (SS), ch 17, § 5; SDC Supp 1960, § 52.1705.
49-35-6. Rural areas--Petition to clerk of courts.
A consumers power district may be organized in a rural area under the provisions of this chapter by filing within ninety days after the earliest date of the signing by any petitioner in the office of the clerk of courts of the county in which the principal place of business of said district is to be located, the original petition prepared in compliance with the requirements of this chapter and by filing certified copies of such petition in the office of the clerk of courts of all other counties of the State of South Dakota into which any part of the proposed district shall extend.
Source: SL 1950 (SS), ch 17, § 6; SDC Supp 1960, § 52.1706.
49-35-7. Contents of petition.
The petition for the organization of a consumers power district shall be addressed to the secretary of state and shall state in substance that it is the intent and purpose of the petitioners to create such a district under the provisions of this chapter subject to approval by the registered voters of the proposed district. The petition shall be circulated by an elector or electors of the proposed district and shall state and contain:
(1) The name of the proposed district, which name shall contain the words, consumers power district;
(2) A description of or map or diagram of the proposed district. The name of any municipality shall be a sufficient description of the boundaries thereof;
(3) A general description of the nature of the business which the proposed district intends to engage in, and the location and method of operation of any proposed power plants, systems and facilities stated in general terms only;
(4) The location of the principal place of business of the proposed district;
(5) A statement that the proposed district does not have the power to levy taxes nor to issue general obligation bonds;
(6) A statement that none of the individual members or patrons of the district or any of their property shall ever be liable in any manner for any obligation of the district;
(7) A statement that the district shall always operate on public service, nonprofit principles for the general purposes of providing equality of distribution of electric energy to all the people and areas entitled to its benefits at the lowest obtainable cost so far as practicable under the provisions of this chapter. Plant extension, improvements, maintenance, or operation reserves are not considered as profit;
(8) The names and addresses of the members of the board of directors of the district (not less than five nor more than twenty-one unless the district comprises or proposes to operate in more than fifty counties in the state, in which case the number may not be less than seven), who shall serve until their successors are elected and qualified. In the petition the directors named shall be divided as nearly as possible into three equal groups, the members of the first group to hold office until their successors elected at the first general state election thereafter have qualified, the members of the second group to hold office until their successors elected at the second general state election thereafter have qualified, and the members of the third group to hold office until their successors elected at the third general state election thereafter shall have qualified. The group to which each proposed director belongs shall be designated in the petition;
(9) If the proposed district is a municipality, a statement that the entire municipality is included within the proposed district.
Source: SL 1950 (SS), ch 17, § 7; SDC Supp 1960, § 52.1707; SL 1998, ch 276, § 1.
49-35-8. Signatories to petition--Basis for computing minimum required signatures--Information in addition to signatures.
The petition for the organization of a consumers power district shall be signed by five percent of the qualified electors of the proposed district. The number of votes cast for Governor at the general election within the boundaries of the proposed district next preceding the filing of the petition shall be the basis for determining the required number of signatures to the petition. Each petition signer shall also provide the signers printed name, residence address, county of voter registration, and date of signing. To each sheet for petitioners' signatures shall be attached a full and correct copy of the petition.
Source: SL 1950 (SS), ch 17, § 8; SDC Supp 1960, § 52.1708; SL 1998, ch 276, § 2.
49-35-9. Affidavit by circulator of petition.
Every sheet of every petition for the organization of a consumers power district containing signatures shall have upon it and below the signatures a circulator's verification as required by subdivision 12-1-3(8).
Source: SL 1950 (SS), ch 17, § 9; SDC Supp 1960, § 52.1709; SL 1998, ch 276, § 3.
49-35-10. Issuance of certificate of filing of petition.
After the petition has been filed in the Office of the Secretary of State, if the secretary of state finds that the petition conforms to law and contains the required number of valid signatures, the secretary of state shall file the petition and issue a certificate of filing of the petition to the county auditor of any counties in which the proposed district lies or the municipal finance officer if the proposed district is confined to one municipality.
Source: SL 1950 (SS), ch 17, § 10; SDC Supp 1960, § 52.1710; SL 1998, ch 276, § 4.
49-35-15. Submission to electors--Procedure for conducting election.
Upon the receipt of the certificate of filing by any county auditor or municipal finance officer receiving the same from the secretary of state, the question shall be submitted to the electors of the proposed district at the next election. The manner of conducting and voting at elections for the formation of such districts under this chapter, opening and closing of polls, keeping poll lists, canvassing the votes, declaring the result, and certifying the returns shall be the same as provided by the general election laws of this state governing the election of county or municipal officers, as the case may be, except as otherwise provided in this chapter.
Source: SL 1950 (SS), ch 17, § 10; SDC Supp 1960, § 52.1710; SL 1998, ch 276, § 9.
49-35-16. Certification of election returns.
Within ten days after the canvass of the vote at an election pursuant to § 49-35-15, each county auditor or municipal finance officer shall certify and return to the secretary of state the number of votes cast at such election in favor of and against the question submitted. If a majority of the electors voting on the question at the election vote in favor of the question submitted, the secretary of state shall file and record the results of the election and thereupon the district under its designated name constitutes a body politic and corporate.
Source: SL 1950 (SS), ch 17, § 10; SDC Supp 1960, § 52.1710; SL 1998, ch 276, § 10.
49-35-17. Annexation of additional territory--Consolidation of districts--Petitions--Election.
A petition for the annexation of additional territory to an existing district may be filed by registered voters of the area to be annexed. Petitions for the consolidation of two or more existing districts shall be filed by registered voters of each existing district. These petitions shall be filed with the secretary of state, specifying the territory to be annexed or the districts to be consolidated, in accordance with the provisions of §§ 49-35-7 to 49-35-9, inclusive. Upon the filing of such petition, the secretary of state shall follow the procedures of § 49-35-10, and an election shall be held pursuant to the provisions of this chapter. If the majority of the electors of such additional territory or in each of the districts to be consolidated, as the case may be, voting thereon shall vote in favor of such annexation or consolidation, the county auditor or municipal finance officer, as the case may be, shall file the results of such election in the principal places of business of the existing districts involved.
Source: SL 1950 (SS), ch 17, § 10; SDC Supp 1960, § 52.1710; SL 1998, ch 276, § 11.
49-35-27. Amendment of petition to change name or principal place of business--Changing number of directors--Changes authorized by directors.
Any district may amend its petition to provide for a change in its name or change in the location of its principal place of business and may reduce or increase the number of members of its board of directors. No elimination or detachment, increase, enlargement, annexation, or consolidation of the territory of a district, or change in its principal place of business, its name or the number of members of its board of directors, may occur unless authorized by the directors of the district involved. The amendment shall comply with the requirements of 49-36-4 and shall be filed forthwith in the Office of the Secretary of State.
Source: SL 1950 (SS), ch 17, § 73; SDC Supp 1960, § 52.1772; SL 1989, ch 403, § 3; SL 1998, ch 276, § 21; SL 2003, ch 114, § 2.
49-35-30. Amendment of petition for creation of district--Effective date of amendment.
The proposed amendment is effective and in full force immediately upon the issuance of a certificate of amendment by the secretary of state. Thereupon the district, as in the case of the original district, is a public corporation and political subdivision, and shall operate and function accordingly in the reduced and subdivided area, or the increased and enlarged area, under the terms, powers, privileges, and conditions of chapters 49-35 to 49-40, inclusive.
Source: SL 1950 (SS), ch 17, § 76; SDC Supp 1960, § 52.1775; SL 1998, ch 276, § 24.
49-35-32. Citation of chapters.
Chapters 49-35 to 49-40, inclusive, may be cited as the "Consumers Power Districts Law."
Source: SL 1950 (SS), ch 17, § 1; SDC Supp 1960, § 52.1701.
49-36-1
Election of directors--Persons entitled to vote--Nonpartisan ballot required--Terms
of directors.
49-36-1.1
Procedure for election.
49-36-1.2
Endorsement of candidate by political party punishable as misdemeanor.
49-36-1.3
Content and filing of nominating petitions.
49-36-1.4
References to party ballot or affiliation prohibited on petition.
49-36-1.5
When placement of names on primary ballot unnecessary.
49-36-1.6
Order of candidate names.
49-36-1.7
Separate ballots for primary elections--Title--Content.
49-36-1.8
Form of ballot prescribed by board.
49-36-1.9
Nominees.
49-36-1.10
Reduction in number of nominees through death, withdrawal or disqualification--Availability of nominating petition.
49-36-2
Duties of election officials.
49-36-3
Certification of election districts by secretary of state--Number of directors--Additional information.
49-36-4
Increasing or decreasing number of directors--Division of territory for election of
directors--Composition of subdivisions--Persons entitled to vote.
49-36-5
Precincts not within district--Attachment to adjacent county.
49-36-6
Vacancies on board of directors--Circumstances creating vacancy--Filling by board
of directors.
49-36-7
Oath of directors.
49-36-8
Repealed.
49-36-9
Removal of directors--Grounds for removal.
49-36-10
Exercise of power by board of directors.
49-36-11
Qualifications of director.
49-36-12
Adoption of rules, regulations, and bylaws by directors--Majority as quorum--Majority vote required for action.
49-36-13
Officers of district--Certain officers elected from membership of board of directors.
49-36-14
Bond of treasurer and other designated officers--Amount and conditions of bond--Cost.
49-36-15
General manager as chief executive officer.
49-36-16
Compensation for members of board of directors.
49-36-17
Repealed.
49-36-18
Interest in district contracts prohibited--Violation as ground for removal from office--Interest as voiding obligation under contract.
49-36-19
Authorization to bargain collectively with employees--Rights of employees to
organize.
49-36-1. Election of directors--Persons entitled to vote--Nonpartisan ballot required--Terms of directors.
After the selection of the original board of directors of a consumers power district as provided for in chapter 49-35, their successors shall be nominated and elected and shall take office as provided in this chapter. Qualified voters of the political subdivision or subdivisions whose combined territory composes the territory of a district shall be qualified voters of the district. The nomination and election shall be by separate nonpartisan ballot. The term of each member of the board thus elected shall be six years and until his successor is elected and qualified.
Source: SL 1950 (SS), ch 17, §§ 18, 19; SDC Supp 1960, §§ 52.1718, 52.1719; SL 1989, ch 403, § 4.
49-36-1.1. Procedure for election.
All candidates for the office of director of a consumers power district shall be nominated and voted for at the primary and general elections in the manner provided by this chapter.
Source: SL 1989, ch 403, § 5.
49-36-1.2. Endorsement of candidate by political party punishable as misdemeanor.
It is a Class 2 misdemeanor for any political party to endorse or nominate by any convention, or other method, any candidate for director.
Source: SL 1989, ch 403, § 6.
49-36-1.3. Content and filing of nominating petitions.
Nominating petitions for director filed pursuant to this chapter shall state the director position sought, using the designations established by the secretary of state on file in the office of the secretary of state within the time prescribed by § 12-6-4 and shall be signed by not less than fifty registered voters of the district or subdivision of the district. To the extent it is consistent with this chapter, § 12-6-8 shall govern such petitions.
Source: SL 1989, ch 403, § 7.
49-36-1.4. References to party ballot or affiliation prohibited on petition.
In any petition filed by or on behalf of any candidate for nomination to director office at any primary election or any attachment thereto, no reference may be made to any party ballot or to the party affiliation of the candidate.
Source: SL 1989, ch 403, § 8.
49-36-1.5. When placement of names on primary ballot unnecessary.
If nominating petitions filed on behalf of candidates do not exceed twice the number of persons for the number of director positions to be filled, the names of the persons need not be placed upon the primary ballot and the persons shall be the nominees for the positions.
Source: SL 1989, ch 403, § 9.
49-36-1.6. Order of candidate names.
The order of names of director candidates certified by the secretary of state to each of the county auditors shall be arranged by lot. Any candidate has the right to be present or represented when the arrangement is being determined.
Source: SL 1989, ch 403, § 10.
49-36-1.7. Separate ballots for primary elections--Title--Content.
At all primary elections at which candidates for director office are to be nominated and a primary is required, the county auditors shall prepare and furnish separate ballots upon which shall be placed the names of the candidates for the offices. The ballots shall be entitled "nonpolitical consumers power district ballot" and shall contain no other designation. The names of all candidates shall be placed thereon without any party designation in the order designated by the secretary of state.
Source: SL 1989, ch 403, § 11.
49-36-1.8. Form of ballot prescribed by board.
The form of the nonpolitical consumers power district ballot shall be prescribed by the Board of Elections.
Source: SL 1989, ch 403, § 12.
49-36-1.9. Nominees.
The nominees shall be those persons constituting twice the number of persons to be elected receiving the highest number of votes in the primary election.
Source: SL 1989, ch 403, § 13.
49-36-1.10. Reduction in number of nominees through death, withdrawal or disqualification--Availability of nominating petition.
If after nominations have been made under the provisions of this chapter and the number of nominees for a director office shall be reduced through death, withdrawal or disqualification of a nominee, the registered voters of the district may, if there is sufficient time for filing a nominating petition pursuant to § 12-8-6, nominate one or more candidates for such director office by a petition otherwise complying with § 49-36-1.3.
Source: SL 1989, ch 403, § 14.
49-36-2. Duties of election officials.
It shall be the duty of all state and local officers, and of all officers of election, to perform all duties imposed upon them by the laws of this state pertaining to primary and general elections, insofar as applicable to election of directors of districts organized under the provisions of chapter 49-35.
Source: SL 1950 (SS), ch 17, § 18; SDC Supp 1960, § 52.1718.
49-36-3. Certification of election districts by secretary of state--Number of directors--Additional information.
Not less than ninety days prior to any election, the secretary of the consumers power district shall certify to the secretary of state the names of the counties, municipalities and election precincts then comprising the district, and at the same time he shall certify the number of directors to be elected and the election districts or subdivisions in which they are to be elected, respectively. The secretary of the district shall also furnish to the secretary of state and officials of election such additional information as they may reasonably require in the proper performance of their duties in the conduct of elections, and the certification of the results of the same.
Source: SL 1950 (SS), ch 17, § 19; SDC Supp 1960, § 52.1719; SL 1989, ch 30, § 82.
49-36-4. Increasing or decreasing number of directors--Division of territory for election of directors--Composition of subdivisions--Persons entitled to vote.
Subject to the provisions of chapters 49-35 to 49-40, inclusive, the board of directors in a consumers power district may amend the petition for its creation, or any amended petition, to increase or decrease the number of its directors, or to provide for the division of the territory of such district into two or more subdivisions for the nomination and election of some or all of the directors, or may do either or both.
A notarized original and an exact or conforming copy of the petition of amendment shall be executed by the president of the board of directors, or other officer of the district so authorized, and shall set forth:
(1) The name of the consumers power district;
(2) The amendment so adopted;
(3) A statement setting forth the date of the meeting of directors at which the amendment was adopted, that a quorum was present at such meeting, and that such amendment received at least a majority of the votes entitled to be cast by directors present at such meeting.
Upon filing of the petition of amendment as provided in this section with the Office of the Secretary of State, if the secretary of state finds that the petition conforms to law, the secretary of state shall file the petition and issue a certificate of amendment to the consumers power district.
Each subdivision shall be composed of one or more voting precincts and the total number of voters in each subdivision shall be approximately the same so far as practicable. The qualified voters of a subdivision of a district may only cast their ballots for candidates for directors to be elected from such subdivision, and for candidates for directors to be elected at large from the whole district, and the ballots for directors shall be prepared accordingly.
Source: SL 1950 (SS), ch 17, §§ 20, 22; SDC Supp 1960, §§ 52.1720, 52.1722; SL 2003, ch 114, § 3.
49-36-5. Precincts not within district--Attachment to adjacent county.
Any precincts in a county, the entire territory of which is not within a consumers power district, shall for voting purposes, be attached to an adjoining or adjacent county, which is within the district. Such adjoining or adjacent county shall furnish ballots to the election board of such precinct, and the result of the election shall be certified by the precinct election board to the county furnishing the ballots.
Source: SL 1950 (SS), ch 17, § 21; SDC Supp 1960, § 52.1721.
49-36-6. Vacancies on board of directors--Circumstances creating vacancy--Filling by board of directors.
A vacancy on the board of directors shall exist in the event of the
(1) Death, disability or removal from district of any directors;
(2) Removal from the subdivision from which the director was elected; or
(3) Elimination or detachment from the district of the territory in which a director or directors reside.
In the event of a vacancy, the vacancy shall be filled by the board of directors.
Source: SL 1950 (SS), ch 17, § 23; SDC Supp 1960, § 52.1723; SL 1989, ch 403, § 15.
49-36-7. Oath of directors.
Before entering upon the duties of his office, every member elected to membership on the board of directors shall take and subscribe to an oath to support the Constitution of the United States and the Constitution of the State of South Dakota, and faithfully and impartially to perform the duties of his office, which oath shall be filed in the Office of the Secretary of State.
Source: SL 1950 (SS), ch 17, § 24; SDC Supp 1960, § 52.1724.
49-36-9. Removal of directors--Grounds for removal.
Members of the board of directors may be removed from office for the same reasons and in the same manner as provided by law for the removal of county officers under the provisions of §§ 3-17-6 to 3-17-9, inclusive.
Source: SL 1950 (SS), ch 17, § 26; SDC Supp 1960, § 52.1726.
49-36-10. Exercise of power by board of directors.
The corporate powers of a consumers power district shall be vested in and exercised by the board of directors of the district.
Source: SL 1950 (SS), ch 17, § 27; SDC Supp 1960, § 52.1727.
49-36-11. Qualifications of director.
No person is qualified to hold office as a member of the board of directors of a consumers power district unless the person is a voter of the district or, if the district be subdivided for election purposes as provided in this chapter, of the subdivision of which the person is a voter. No person is qualified to be a member of more than one district board. No person is qualified to serve as a member if the person's service on the board would be inconsistent with the person's employment or financial interest.
Source: SL 1950 (SS), ch 17, § 27; SDC Supp 1960, § 52.1727; SL 1976, ch 298, § 3; SL 2015, ch 234, § 1.
49-36-12. Adoption of rules, regulations, and bylaws by directors--Majority as quorum--Majority vote required for action.
The board of directors of a consumers power district may adopt rules and regulations, or bylaws, which are not inconsistent with the provisions of chapters 49-35 to 49-40, inclusive, for the conduct of the business and affairs of the district. A majority of the members of the board of directors shall constitute a quorum for the transaction of official business and the decision of the majority of the members of the board shall be required to be the act of the board.
Source: SL 1950 (SS), ch 17, § 31; SDC Supp 1960, § 52.1731; SL 1989, ch 403, § 16.
49-36-13. Officers of district--Certain officers elected from membership of board of directors.
The board of directors of a consumers power district shall elect the officers of the district, who shall be a president, a vice-president, a secretary, and a treasurer, and the board may appoint an executive committee and other officers, including a general manager, agents, servants, and employees as shall be deemed necessary in handling the affairs and transacting the business of the district. The president and vice-president shall be elected from the membership of the board of directors.
Source: SL 1950 (SS), ch 17, § 28; SDC Supp 1960, § 52.1728.
49-36-14. Bond of treasurer and other designated officers--Amount and conditions of bond--Cost.
The treasurer, and other officers and employees the board of directors may designate, shall furnish and maintain a corporate surety bond in the amount of twenty thousand dollars. The bond shall be satisfactory in form and with sureties approved by the board. The bond shall be filed with the secretary of state. The cost of the bond shall be paid by the district.
Source: SL 1950 (SS), ch 17, § 28; SDC Supp 1960, § 52.1728; SL 1989, ch 403, § 17.
49-36-15. General manager as chief executive officer.
A general manager may be employed by a consumers power district on such terms as the board deems advisable. He shall be the chief executive officer of the district and, subject to the control of the board of directors, shall manage, conduct, and administer the affairs of the district in an efficient and economical manner.
Source: SL 1950 (SS), ch 17, § 30; SDC Supp 1960, § 52.1730.
49-36-16. Compensation for members of board of directors.
Members of the board of directors shall be paid their actual expenses while engaged in performing the duties of their office or otherwise engaged upon the business of the district. In addition thereto, they each shall receive as compensation for their services a sum to be determined by two-thirds or more of the members of the board of directors.
Source: SL 1950 (SS), ch 17, § 37; SDC Supp 1960, § 52.1737; SL 1983, ch 343; SL 1989, ch 403, § 18.
49-36-18. Interest in district contracts prohibited--Violation as ground for removal from office--Interest as voiding obligation under contract.
No officer, employee, or member of the board of directors of a consumers power district may be interested, directly or indirectly, either by himself or herself, or by agent, in any contract to which the district, or anyone for its benefit, is a party, and any such officer, employee, or director who shall have such an interest shall be subject to removal from office therefor by the board, subject to review of such action by the circuit court for the county in which the district maintains its principal place of business. Such interest in any contract by an officer, employee, or director shall void the obligation thereof on the part of the district.
This section does not apply to any contract of the district for the purchase or sale of power, energy, or any other products or services between the district and any political subdivision or public corporation, another consumers power district, or nonprofit cooperative financed in whole or in part by the Rural Electrification Administration or any other federal agency.
Source: SL 1950 (SS), ch 17, § 55; SDC Supp 1960, § 52.1755; SL 1998, ch 276, § 25.
49-36-19. Authorization to bargain collectively with employees--Rights of employees to organize.
The board of directors of a consumers power district and the general manager, subject to the control of the board of directors, are hereby authorized to bargain collectively with employees of the district and their representatives with respect to wages, hours, and all other terms and conditions of their employment, and to enter into collective agreements with respect thereto with such employees and their representatives. The employees of the district shall, without limitation, have all the rights and protections provided by law for the aid and benefit of the employees of private corporations or firms, or individuals, including, without limitations, the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection.
Source: SL 1950 (SS), ch 17, § 29; SDC Supp 1960, § 52.1729.
CHAPTER 49-37
CONSUMERS POWER DISTRICT POWERS AND OPERATIONS
49-37-1 Usual corporate powers--Power to hold property in conduct of business--Authority to promote district.
49-37-2 Acquisition or operation of electric plants and systems inside or outside district--Singular or joint operations--Purpose.
49-37-3 49-37-3. Repealed by SL 1998, ch 276, § 26.
49-37-3.1 Criteria considered in development of power systems--Alternative sources--Board determination as to size of facility.
49-37-4 Contractual powers--Sale of electrical appliances or equipment prohibited.
49-37-4.1 Contract to designate party as agent for itself and district--Delegation of contractual powers to agent.
49-37-4.2 Validation of prior contracts providing for designation of agent.
49-37-4.3 Cooperation in generation and transmission facilities--Permissible terms of contract.
49-37-5 Duty to sell at wholesale to municipalities or other political subdivisions.
49-37-6 Joint action with other districts.
49-37-7 District as having no power to tax.
49-37-8 State and other political subdivisions not liable for district's obligations.
49-37-9 Duty to cause estimates before entering into contract--Joint projects excepted--Minimum number of bids.
49-37-9.1 Prior joint acts validated despite bid law noncompliance.
49-37-10 Competitive bidding requirements suspended during emergency.
49-37-11 Competitive bidding requirements suspended during war.
49-37-12 Private industry prohibited from owning assets of district--Consent of voters--Sale of individual items permitted.
49-37-13 Privilege tax levied against district.
49-37-14 Computation and payment of tax.
49-37-15 Taxes on districts qualifying as rural electric companies.
49-37-16 Charges for services--Discrimination prohibited.
49-37-17 Districts not within jurisdiction of Public Utilities Commission.
49-37-18 District as franchised to use streets of municipality for transmission lines.
49-37-19 Contracts with municipality for sale at wholesale--Authority of municipality.
49-37-20 Other contracts with municipalities--Authority of municipality.
49-37-21 Districts as works of internal improvement--Applicability of laws respecting internal improvements.
49-37-22 Just compensation for use of state waters--Amount of compensation.
49-37-23 Liability of district respecting use of water.
49-37-24 Investment of district funds--Regulations--Investment officer.
49-37-25 Indemnification of directors, officers, employees or agents.
49-37-1. Usual corporate powers--Power to hold property in conduct of business--Authority to promote district.
Subject to the limitations of the petition for its creation and all amendments thereto, a consumers power district shall have all the usual powers of a corporation for public purposes and may purchase, hold, sell, and lease, as lessor or lessee, personal property and real estate, reasonably necessary for the conduct of its business, and may receive and hold property by gift, grant, will, exchange, or otherwise. A consumers power district may expend its money and use its assets and property to promote the district in any manner as the board of directors may determine.
Source: SL 1950 (SS), ch 17, § 39; SDC Supp 1960, § 52.1739; SL 1989, ch 403, § 19.
49-37-2. Acquisition or operation of electric plants and systems inside or outside district--Singular or joint operations--Purpose.
Subject to the limitations of the petition for its creation and all amendments thereto, a consumers power district may finance, own, construct, reconstruct, purchase, lease as lessor or lessee, or otherwise acquire, improve, extend, manage, use, or operate either singularly or jointly with others and anywhere within or without the boundaries of the district or the State of South Dakota any electric light and power plants, lines and systems, or interest therein, for the generation, transmission, or transformation of electric power and energy, necessary for or incidental to the carrying out of any power granted to it by law.
Source: SL 1950 (SS), ch 17, § 40; SDC Supp 1960, § 52.1740; SL 1973, ch 286, § 1; SL 1976, ch 298, § 1.
49-37-3.1. Criteria considered in development of power systems--Alternative sources--Board determination as to size of facility.
In order to provide electric power and energy to the people of this state at a more economical cost and with greater reliability, the board of directors of a consumers power district in providing for development of power plants, lines and systems or interest therein, for the generation, transmission, and transformation of electric power and energy, shall take into account, among other things, the reliability and availability of existing alternative supply sources and economies and exigencies to be achieved in developing large scale facilities for the generation and transmission of electric power and energy, whether or not such facilities have a capacity or capability in excess of the present or foreseeable needs of such district. A determination by a board of directors as to the size of the facility to be developed shall be made by resolution, and shall be final.
Source: SL 1976, ch 298, § 4.
49-37-4. Contractual powers--Sale of electrical appliances or equipment prohibited.
Subject to the limitations of the petition for its creation and all amendments thereto, a consumers power district may engage in, or transact business, or enter into any kind of contract or arrangement with any person, firm, corporation, limited liability company, association or labor union, state, county, municipality, governmental subdivision, or agency, or with the government of the United States, the Rural Electrification Administration, or with any officer, department, bureau, or agency thereof, or with any corporation organized by federal law, including the Reconstruction Finance Corporation, or any successor thereof, or with any body, politic or corporate, for any of the purposes mentioned in §§ 49-37-2 and 49-37-3.1 or for or incident to the exercise of any one or more of the foregoing powers, or for the generation, distribution, transmission, sale, purchase, exchange, interchange, wheeling, and pooling of electric power and energy for lighting, power, heating, and for any and every service involving, employing, or in any manner pertaining to the use of electric power and energy, by whatever means generated or distributed, or for the financing or payment of the cost and expense incident to the acquisition or operation of any such power plant or system or incident to any obligation or indebtedness entered into or incurred by the district. However, the district may not engage in the sale of electrical appliances or equipment.
Source: SL 1950 (SS), ch 17, § 40; SDC Supp 1960, § 52.1740; SL 1975, ch 286; SL 1994, ch 351, § 137; SL 2021, ch 200, § 5.
49-37-4.1. Contract to designate party as agent for itself and district--Delegation of contractual powers to agent.
Any consumers power district may contract, in cooperation with others in an electric generation or transmission facility, for the designation of one of the contracting parties as agent on behalf of itself and a consumers power district. Such contract may provide that one of the participants as agent of a consumers power district may make, execute and enter into contracts and let contracts without bids, settle claims, and perform the powers, duties and functions delegated to the agent by the consumer power district with respect to the construction, operation, and maintenance of an electric generation and transmission facility.
Source: SL 1977, ch 394, § 3.
49-37-4.2. Validation of prior contracts providing for designation of agent.
All contracts heretofore made, executed, and entered into by a consumers power district which consumers power district is participating in cooperation with others in an electric generation or transmission facility are in all things legalized, cured, and declared valid notwithstanding the fact that the contracts provides for the designation of one of the participants to such contract as agent on behalf of itself and a consumers power district, and notwithstanding the fact that the contract provides that one of the participants as agent of a consumers power district may make, execute and enter into contracts and let contracts without bids, settle claims, and perform the powers, duties, and functions delegated to the agent by the consumers power district with respect to the construction, operation, and maintenance of an electric generation and transmission facility.
Source: SL 1977, ch 394, § 2.
49-37-4.3. Cooperation in generation and transmission facilities--Permissible terms of contract.
Any consumers power district may contract in cooperation with others in an electric generation and transmission facility. Such contract may provide that the parties to the contract may be exempted from responsibilities of their respective negligence to the other party or parties with respect to the construction, operation, maintenance and management of an electric generation and transmission facility. Such contract may further provide for nonpartitionment and that the contract may be governed by the laws of the state in which such electric generation and transmission facilities are located.
Source: SL 1978, ch 348.
49-37-5. Duty to sell at wholesale to municipalities or other political subdivisions.
A consumers power district which is engaged in the generation and transmission of electrical energy shall sell electrical energy at wholesale directly to any municipality or political subdivision or rural electrical associations and electrical distribution cooperatives or any person, firm, association, or corporation which in turn generates, transmits, or distributes electricity on a nonprofit basis in the state which is engaged in the distribution and sale of electrical energy when any such person or organization makes application for the purchase of electrical energy, if the district has the requested amount of electrical energy available for sale, and the applicant agrees to make or pay for the necessary physical connection with the electrical facilities of the district.
Source: SL 1950 (SS), ch 17, § 41; SDC Supp 1960, § 52.1741; SL 1989, ch 403, § 20.
49-37-6. Joint action with other districts.
A consumers power district shall have and may exercise any one or more of the powers, rights and privileges mentioned in §§ 49-37-1 to 49-37-5, inclusive, either alone or jointly with one or more other such districts.
Source: SL 1950 (SS), ch 17, § 42; SDC Supp 1960, § 52.1742.
49-37-7. District as having no power to tax.
A consumers power district shall have no power of taxation, and no governmental authority shall have the power to levy or collect taxes for the purpose of paying, in whole or in part, any indebtedness or obligation of or incurred by the district or upon which the district may be or become in any manner liable.
Source: SL 1950 (SS), ch 17, § 43; SDC Supp 1960, § 52.1743.
49-37-8. State and other political subdivisions not liable for district's obligations.
Neither the State of South Dakota, nor any county, municipality, school district, or other political subdivision of the state, nor any individual person, nor the property of any of such, shall ever be in any manner liable or responsible for any obligation of any consumers power district.
Source: SL 1950 (SS), ch 17, § 44; SDC Supp 1960, § 52.1744; SL 1992, ch 60, § 2.
49-37-9. Duty to cause estimates before entering into contract--Joint projects excepted--Minimum number of bids.
Before any consumers power district enters into any contract for the construction, building, alteration, extension, or improvement of any power plant or system, or any part or section thereof, for the use of the district, or for the purchase of any materials, machinery, or equipment, excluding the purchase of electric power and energy, the district shall cause estimates of the cost thereof to be made by a competent engineer. If the estimated cost exceeds the sum of fifty thousand dollars, no contract may be entered into without advertising for sealed bids. However, this section does not apply to any consumers power district if the district, jointly with others, contracts for construction, building, alteration, extension, improvement, or leasing of any power plant or system. As far as practicable the board of directors shall secure at least two competitive quotations and retain them for their files. The board shall enter in the minutes a statement of the quotations received, identifying the bidder and the amount of the bid.
Source: SL 1950 (SS), ch 17, § 52; SDC Supp 1960, § 52.1752; SL 1973, ch 286, § 3; SL 1975, ch 287; SL 1983, ch 344; SL 1989, ch 403, § 21.
49-37-9.1. Prior joint acts validated despite bid law noncompliance.
All acts and proceedings had prior to January 1, 1975, and all contracts, expenditures and acquisitions made prior to January 1, 1975, by any consumers power district of the state where the consumers power district jointly with others contracted for the construction, building, alteration, extension, improvements, or the leasing of any power plant or system are in all things legalized, cured, and declared valid.
Source: SL 1975, ch 289; SL 2021, ch 200, § 6.
49-37-10. Competitive bidding requirements suspended during emergency.
In the event of sudden or unexpected damage, injury or impairment of such plant, works, system, or other property belonging to a consumers power district, the board of directors may, in its discretion, declare an emergency, and proceed with the necessary repairs, alterations, extensions, additions, or other work, without first complying with the provisions of § 49-37-9.
Source: SL 1950 (SS), ch 17, § 53; SDC Supp 1960, § 52.1753.
49-37-11. Competitive bidding requirements suspended during war.
When, by reason of disturbed or disrupted economic conditions due to the prosecution of war or due to the operation of laws, rules, or regulations of governmental authorities, whether enacted, passed, promulgated, or issued under or due to the emergency or necessities of war or national defense, the contracting or purchasing by a consumers power district, for any one or more of the purposes mentioned in § 49-37-9 is so restricted, prohibited, limited, allocated, regulated, rationed, or otherwise controlled, that the letting of contracts therefor, pursuant to the requirements of said section, is legally or physically impossible or impractical, the provisions of said section shall not apply to such contract or purchases.
Source: SL 1950 (SS), ch 17, § 54; SDC Supp 1960, § 52.1754.
49-37-12. Private industry prohibited from owning assets of district--Consent of voters--Sale of individual items permitted.
Neither by sale under foreclosure, receivership or bankruptcy proceedings, nor by alienation in any other manner, may the property of a consumers power district become the property or come under the control of any private person, firm or corporation engaged in the business of generating, transmitting or distributing electricity for profit, by action of the directors of said district without consent of the voters of the district as expressed by a majority vote at any regular or special election called and held for such purpose. But nothing in this section contained shall prevent the district from selling any individual item of equipment, machinery, supplies or facilities which shall be considered by the directors as surplus, obsolete, or no longer necessary to the operation of the district.
Source: SL 1950 (SS), ch 17, § 61; SDC Supp 1960, § 52.1760.
49-37-13. Privilege tax levied against district.
For the privilege of engaging in the business of generating, distributing, transmitting, purchasing, selling electric energy for public use, or any other business as provided in chapters 49-35 to 49-40, inclusive, there is levied upon, and shall be collected from, each consumers power district an occupational excise tax equal to all the taxes, including, but not limited to, licenses, excise, property, and special assessment taxes, except federal taxes, which a person, partnership, limited liability company, association, or private corporation engaged in a similar business would be required to pay.
Source: SL 1950 (SS), ch 17, § 66; SDC Supp 1960, § 52.1765; SL 1994, ch 351, § 138.
49-37-14. Computation and payment of tax.
For the purpose of determining the occupational excise tax levied by § 49-37-13:
(1) All property owned, leased, operated, or controlled by any district shall be assessed and the tax equivalent computed, collected, paid, and apportioned in the same manner and for the same purposes as may now or hereafter be provided by law for the assessment and taxation of similar property similarly used by a private electric public utility; and
(2) Each district shall comply in the same manner and for the same purposes as may now or hereafter be provided by law for the return, assessment, collection, payment, and apportionment of all occupational, privilege, excise, or special assessment taxes, or licenses, levied or imposed upon any person, partnership, limited liability company, association, or private corporation engaged in a similar business.
Source: SL 1950 (SS), ch 17, § 66; SDC Supp 1960, § 52.1765; SL 1994, ch 351, § 139.
49-37-15. Taxes on districts qualifying as rural electric companies.
Notwithstanding §§ 49-37-13 and 49-37-14, if a consumers power district comes within the classification of rural electric companies as defined in chapter 10-36, then the provisions of that chapter shall apply to said district.
Source: SL 1950 (SS), ch 17, § 66; SDC Supp 1960, § 52.1765.
49-37-16. Charges for services--Discrimination prohibited.
The board of directors of any district organized under chapter 49-35 shall have the power and be required to fix, establish and collect adequate rates, tolls, rents, and other charges, for electrical energy, and for any services or facilities sold, furnished or supplied by the district, which rates, tolls, rents, and charges shall be fair, reasonable, nondiscriminatory, and so adjusted as in a fair and equitable manner to confer upon and distribute among the users and consumers of services furnished or sold by the district the benefits of a successful operation and conduct of the business of the district.
Source: SL 1950 (SS), ch 17, § 67; SDC Supp 1960, § 52.1766.
49-37-17. Districts not within jurisdiction of Public Utilities Commission.
The South Dakota Public Utilities Commission shall have no jurisdiction over the districts organized under chapter 49-35, or over their rates, charges, or operations.
Source: SL 1950 (SS), ch 17, § 68; SDC Supp 1960, § 52.1767.
49-37-18. District as franchised to use streets of municipality for transmission lines.
If the majority of the voters of any municipality voting thereon shall vote in favor of the formation of a consumers power district, the annexation of territory or a municipality to an existing district, or the consolidation of two or more districts, as the case may be, such action shall be construed as the granting of a franchise to occupy any of the streets, alleys, or public places of the municipality to transmit and distribute electrical energy for heat, light and power.
Source: SL 1950 (SS), ch 17, § 70; SDC Supp 1960, § 52.1769.
49-37-19. Contracts with municipality for sale at wholesale--Authority of municipality.
A consumers power district shall have authority to contract with municipalities for the sales, transmission, and delivery of electrical energy at wholesale; and a municipality shall have authority to purchase at wholesale electrical energy from a district without the granting of a franchise to such district.
Source: SL 1950 (SS), ch 17, § 71; SDC Supp 1960, § 52.1770.
49-37-20. Other contracts with municipalities--Authority of municipality.
Contracts, other than franchises, which any municipality is empowered to make with any consumers power district to furnish such municipality, or its inhabitants, with electrical energy, shall be made in the same manner and upon the same terms and conditions as such municipality is now or hereafter empowered to make with any private corporation to furnish such municipality, or its inhabitants, with electrical energy.
Source: SL 1950 (SS), ch 17, § 72; SDC Supp 1960, § 52.1771.
49-37-21. Districts as works of internal improvement--Applicability of laws respecting internal improvements.
All power plants and systems, constructed or otherwise acquired, or used or operated by any consumers power district under the provisions of chapters 49-35 to 49-40, inclusive, or proposed by such district to be so constructed, acquired, owned, used, or operated, are hereby declared to be works of internal improvement. All laws applicable to works of internal improvement, and all provisions of law now applicable to electric light and power corporations, as regards the exercise of the power of eminent domain, the use and occupation of state and other public lands and highways, the appropriation, or other acquisition, for any of the purposes contemplated in said chapters, the manner or method of construction and physical operation of power plants, systems, and transmission lines, as hereby contemplated, shall be applicable as nearly as may be, to districts organized under chapter 49-35, and in the performance of the duties conferred or imposed upon them under the provisions of chapters 49-35 to 49-40, inclusive.
Source: SL 1950 (SS), ch 17, § 78; SDC Supp 1960, § 52.1777.
49-37-22. Just compensation for use of state waters--Amount of compensation.
No inferior right to the use of the waters of this state shall be acquired by a superior right without just compensation therefor to the inferior user. The just compensation paid to those using water for power purposes shall not be greater than the cost of replacing the power which would be generated in the plant or plants of the power user by the water so acquired.
Source: SL 1950 (SS), ch 17, § 79; SDC Supp 1960, § 52.1778.
49-37-23. Liability of district respecting use of water.
Any consumers power district shall be liable for all breaks, overflow, and seepage damage.
Source: SL 1950 (SS), ch 17, § 80; SDC Supp 1960, § 52.1779.
49-37-24. Investment of district funds--Regulations--Investment officer.
A consumer power district may invest, deposit or administer its public funds, moneys, and securities in the classes of securities and investments approved for investment of state public funds under the provisions of chapter 4-5. The board of directors of a district may promulgate investment policy regulations pertaining to the kind or nature of investments of any of the moneys, funds, or securities and any restrictions on the methods for investment which govern the person or firm designated by the board of directors to invest the district's moneys. The board may designate an officer, employee, other person or firm to act as its investment officer.
Source: SL 1981, ch 339.
49-37-25. Indemnification of directors, officers, employees or agents.
A consumers power district may indemnify any person who was or is a party or is threatened to be made a party to any pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative by reason of the fact that he is or was a director, officer, employee, or agent of the consumers power district or is or was serving at the request of the consumers power district as a director, officer, employee, or agent or other enterprise, against expenses including attorneys' fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with the action, suit, or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the consumers power district and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. However, this section does not apply to any action by or in the right of the consumers power district.
Source: SL 1989, ch 403, § 22.
49-38-1
Minutes of meetings--Books of account--Place of keeping--Public inspection.
49-38-2
Annual audit by department of legislative audits--Filing with auditor-general--Cost
of audit.
49-38-3
Contents of audit.
49-38-4
Time for audit--Furnishing information to auditor.
49-38-5
Repealed.
49-38-6
Repealed.
49-38-7
Expenditure of district moneys--Approval by board of directors.
49-38-8
Repealed.
49-38-9
Repealed.
49-38-1. Minutes of meetings--Books of account--Place of keeping--Public inspection.
The board of directors of a consumers power district shall keep accurate minutes of their meetings and accurate records and books of account, conforming to approved methods of bookkeeping, clearly setting out and reflecting the entire operation, management and business of the district. The books and records shall be kept at the principal place of business of the district or at other regularly maintained place or places of business of the district as designated by the board of directors, with due regard to the convenience of the district and its customers in the several localities or divisions served or from which the information is thus gathered or obtained. The books and records of the district shall at reasonable business hours be open to public inspection.
This section does not apply to information provided to the district by any other entity, or to information as to pricing of power between the district and any other entity. Such information is available to the auditor general.
Source: SL 1950 (SS), ch 17, § 32; SDC Supp 1960, § 52.1732; SL 1998, ch 276, § 27.
49-38-2. Annual audit by department of legislative audits--Filing with auditor-general--Cost of audit.
The fiscal year of a consumers power district shall coincide with the calendar year. The board of directors, at the close of each year's business, shall cause an audit of the books, records, and financial affairs of the district to be made by the South Dakota Department of Legislative Audits or by a certified public accountant or firm of such accountants, who shall be selected by the district, subject to the approval of the auditor-general of South Dakota. The audit shall be in a form prescribed by the auditor-general and shall contain and show the items set forth in this chapter. When the audit has been examined and approved by the auditor-general, written copies thereof shall be placed and kept on file at the principal place of business of the district, and shall be filed with the auditor-general within one hundred and twenty days after December thirty-first of each year. Each district shall pay the cost of such audit.
Source: SL 1950 (SS), ch 17, § 33; SDC Supp 1960, § 52.1733; SL 1989, ch 403, § 23.
49-38-3. Contents of audit.
In each consumers power district, the auditor-general shall require audits pursuant to § 49-38-2 to set forth:
(1) The gross income from all sources of the district for the year previous;
(2) The gross amount of electrical energy supplied by said district;
(3) The amount expended during the previous year for maintenance;
(4) The amount expended during the previous year for plant investments;
(5) The amount of depreciation of the plant during the previous year;
(6) The cost of supplying electrical energy, including production cost, transmission cost and distribution cost;
(7) The number of employees as of December thirty-first of each year;
(8) The salaries paid; and
(9) All other facts necessary to give an accurate and comprehensive view of the cost of maintaining and operating the district.
Source: SL 1950 (SS), ch 17, § 34; SDC Supp 1960, § 52.1734.
49-38-4. Time for audit--Furnishing information to auditor.
The audit and report required by §§ 49-38-2 and 49-38-3 shall be made at the close of the fiscal year. The person making the examination and audit shall have access to all the districts books, records, vouchers, papers, contracts, or other data. It is hereby made the duty of all officers, agents and servants of said district to furnish to the person making the audit, his agents, servants, and employees, such information regarding the auditing of such district as may be deemed essential.
Source: SL 1950 (SS), ch 17, § 35; SDC Supp 1960, § 52.1735.
49-38-7. Expenditure of district moneys--Approval by board of directors.
Money of a consumers power district shall be paid out or expended only upon the authorization or approval of the board of directors, and by check, draft, warrant, electronic payment, or other instrument in writing, signed by the treasurer, assistant treasurer, or such other officer, employee, or agent of the district who is authorized by the treasurer to sign in the treasurer's behalf. However, the authorization shall be in writing and filed with the secretary of the district.
Source: SL 1950 (SS), ch 17, § 58; SDC Supp 1960, § 52.1757; SL 1998, ch 276, § 29.
49-39-1
Authority to borrow--Funds available for repayment--Security for loan.
49-39-2
Pledging revenues as security for borrowing.
49-39-3
Resolution specifying particular revenues pledged.
49-39-4
Refunding of indebtedness--Issuance of refunding securities--Disposition of
proceeds.
49-39-5
Payment of pledged revenues into special fund--Use of revenues--Designation of
depository.
49-39-6
Sale of bonds.
49-39-6.1
Issuance of variable rate obligations--Authorization by resolution--Scope.
49-39-6.2
Enhancement of security for variable rate obligations--Credit agreements--Payment
of costs.
49-39-7
Agreement with bondholders respecting charges for electricity.
49-39-8
Pledging revenues to secure federal indebtedness--State not liable.
49-39-9
Default on bonds--Operation of district by creditors--Priority of payment--Restoration of district to control.
49-39-10
Default on bonds--Court appointment of receiver--Authority of receiver to operate
district--Discharge of receiver and return of district to control.
49-39-11
Pledges of revenues and refunding securities--Validation--Retroactive application.
49-39-1. Authority to borrow--Funds available for repayment--Security for loan.
Any district organized under chapter 49-35 may borrow money and incur indebtedness for any corporate use or purpose. Any indebtedness, liability, or obligation of the district for the payment of money, in whatever manner entered or incurred, and whether arising from contract, implied contract, or otherwise, shall be payable solely:
(1) From revenues, income, and receipts derived by the district from its operation and management of power plants or systems; or
(2) From the issuance or sale by the district of its warrants, notes, debentures, bonds, variable rate obligations, or other evidences of indebtedness, payable solely from such revenues, income, and receipts, or from the proceeds and avails of the sale of property of the district.
Any district may pledge and put up as collateral security for a loan any revenue debentures, notes, warrants, bonds, or other evidences of indebtedness, issued by it.
Source: SL 1950 (SS), ch 17, § 45; SDC Supp 1960, § 52.1745; SL 1989, ch 403, § 26.
49-39-2. Pledging revenues as security for borrowing.
Any consumers power district issuing revenue debentures, notes, warrants, bonds or other evidences of indebtedness is specifically authorized and empowered to pledge all or any part of the revenues which the district may derive from the sale of electrical energy or other service as security for payment of the principal and interest thereon. Any pledge of revenues shall be made by the directors of the district by resolution or by agreement with the purchasers or holders of revenue debentures, notes, warrants, bonds or other evidences of indebtedness. Any pledge of revenues made by a consumers power district pursuant to this chapter is valid and binding from the date the pledge is made and creates a perfected security interest in the revenues pledged. The revenues pledged and held or thereafter received by the consumers power district or any fiduciary are immediately subject to the lien of the pledge without physical delivery or further act, and the lien of the pledge is valid and binding against all parties having claims of any kind in tort, contract or otherwise against the entity, without regard to whether the parties have notice thereof. Neither resolution or agreement with the purchasers or holders of revenue debentures, notes, warrants, bonds or other evidences of indebtedness by which a pledge is created nor any financing statement, continuation statement, or other instrument relating to the pledge are required to be filed or recorded in any manner.
Source: SL 1950 (SS), ch 17, § 46; SDC Supp 1960, § 52.1746; SL 1983, ch 345, § 1.
49-39-3. Resolution specifying particular revenues pledged.
Any resolution or agreement pursuant to § 49-39-2 may specify the particular revenues that are pledged and the terms and conditions to be performed by the district and the rights of the holders of such revenue debentures, notes, warrants, bonds, or other evidences of indebtedness, and may provide for priorities of liens in any such revenues as between the holders of revenue debentures, notes, warrants, bonds, or other evidences of indebtedness, issued at different times or under different resolutions or agreements.
Source: SL 1950 (SS), ch 17, § 47; SDC Supp 1960, § 52.1747.
49-39-4. Refunding of indebtedness--Issuance of refunding securities--Disposition of proceeds.
A resolution or agreement pursuant to § 49-39-2 may further provide for the refunding of any revenue debentures, notes, warrants, bonds or other evidences of indebtedness through the issuance of other revenue debentures, notes, warrants, bonds or other evidences of indebtedness. The resolution may provide that holders are entitled to rights and priorities similar in all respects to those held by the revenue debentures, notes, warrants, bonds or other evidences of indebtedness that are refunded, and for the issuance of the refunding revenue debentures, notes, warrants, bonds or other evidences of indebtedness, either in exchange for revenue debentures, notes, warrants, bonds or other evidences of indebtedness then outstanding, or the sale thereof. The proceeds may be applied, in addition to any other authorized purposes, to the purchase, redemption or payment of the revenue debentures, notes, warrants, bonds or other evidences of indebtedness, then outstanding. Pending application of the proceeds of any refunding revenue debentures, notes, warrants, bonds or other evidences of indebtedness being refunded, if so provided or permitted in the resolution or agreement providing for the issuance of the refunding revenue debentures, notes, warrants, bonds or other evidences of indebtedness, to the payment of any interest on the refunding revenue debentures, notes, warrants, bonds or other evidences of indebtedness and any expenses in connection with the refunding, the proceeds may be invested in direct obligations of, or obligations the principal and interest of which are unconditionally guaranteed by the United States, or such other obligations as shall be provided or permitted by the resolution or agreement providing for the issuance of the revenue debentures, notes, warrants, bonds or other evidence of indebtedness being refunded, and which mature or are subject to redemption by the holders thereof at the option of the holders not later than the respective dates when the proceeds, together with the interest occurring thereof, will be required for the purposes intended.
Source: SL 1950 (SS), ch 17, § 48; SDC Supp 1960, § 52.1748; SL 1983, ch 346, § 1.
49-39-5. Payment of pledged revenues into special fund--Use of revenues--Designation of depository.
Any resolution or agreement pursuant to § 49-39-2 may provide that all or any part of the revenues of the district shall be paid into a special fund, and may set forth all the terms and conditions on which such special fund is to be collected, held and disposed of, whether partly or wholly for the benefit of the holders of such revenue debentures, notes, warrants, or other evidences of indebtedness. Provision may be made that such special fund shall be held by depositories designated or described in such resolution or agreement.
Source: SL 1950 (SS), ch 17, § 49; SDC Supp 1960, § 52.1749.
49-39-6. Sale of bonds.
All bonds of any consumers power district, whether issued to incur new indebtedness, or to refund or refinance existing indebtedness, shall be sold or negotiated for the benefit of the district by the directors in such manner as to them shall appear to be for the advantage, benefit and best interest of the district.
Source: SL 1950 (SS), ch 17, § 50; SDC Supp 1960, § 52.1750; SL 1989, ch 403, § 27.
49-39-6.1. Issuance of variable rate obligations--Authorization by resolution--Scope.
The issuance of variable rate obligations shall be authorized by resolution, order or ordinance of the board of directors of the district, which resolution, order or ordinance shall fix the maximum amount of obligations to be issued or, if applicable, the maximum principal amount which may be outstanding at any time, the maximum term shall be outstanding, the maximum interest rate to be borne by the obligations, the manner of sale (which may be by either public or private sale), price, form, terms, conditions and the covenants thereof. The resolution, order or ordinance authorizing the issuance of obligations may provide for the designation of a paying agent and registrar for the obligations and may authorize one or more designated officers or employees of the district to act on behalf of the district from time to time in the selling and delivering of obligations authorized and fixing the dates, price, interest rates, interest payment periods and other procedures as may be specified in the resolution, order or ordinance. Obligations may be issued in such form or such denomination, payable at such time or times, in such amount or amounts or installments, at such place or places, in such form, under such terms, conditions and details, in such manner, redeemable prior to maturity at any time or times, bearing no interest, or bearing interest at any rate or rates (either fixed, variable, floating, adjustable, or otherwise, all as determined in accordance with the resolution, order or ordinance providing for the issuance of the obligations which resolution, order or ordinance may provide a formula, index, contract or any other arrangement for the periodic determination of interest rates), not to exceed the maximum net effective interest rate allowed by law and may be signed or otherwise executed in such manner, with manual or facsimile signatures, and with or without a seal, all as shall be specified by the board of directors of the district in the resolution, order or ordinance authorizing the issuance of the obligations. The proceeds received from the sale of obligations may be deposited or invested in any manner and in such obligations as may be specified in the resolution, order, ordinance or other proceedings authorizing the obligations. If any officer or officers whose signatures are on any obligations cease to be such officer or officers before the delivery thereof to the purchaser, the signature or signatures shall nevertheless be valid and sufficient for all purposes and the successor or successors in office of any such officer or officers shall be fully authorized to complete the execution, authentication, or delivery of the obligations to the purchaser or purchasers thereof.
Source: SL 1989, ch 403, § 28.
49-39-6.2. Enhancement of security for variable rate obligations--Credit agreements--Payment of costs.
The board of directors of the district may enter into credit agreements in conjunction with the issuance, payment, sale, resale, or exchange of obligations to enhance the security for or provide for the payment, redemption, or remarketing of the variable rate obligations and interest on the obligations or to reduce the interest payable on the obligations. The cost to the issuer of the credit agreement may be paid from the proceeds of the sale of the obligations to which the credit agreement relates or from any other source, including revenues of the district that are available for the purpose of paying the obligations and the interest on the obligations or that may otherwise be legally available to make those payments.
Source: SL 1989, ch 403, § 29.
49-39-7. Agreement with bondholders respecting charges for electricity.
The directors of any district organized under the provisions of chapter 49-35 are authorized to agree with the holders of any such revenue debentures, notes, warrants, bonds, or other evidences of indebtedness, as to the rates which such district shall charge and collect for electric energy, or other service, sold by the district.
Source: SL 1950 (SS), ch 17, § 51; SDC Supp 1960, § 52.1751.
49-39-8. Pledging revenues to secure federal indebtedness--State not liable.
Nothing contained in chapters 49-35 to 49-40, inclusive, shall prevent the district from assigning, pledging, or otherwise hypothecating, its revenues, incomes, receipts or profits to secure the payment of indebtedness to the federal government; provided, that the State of South Dakota shall never pledge its credit or funds, or any part thereof, for the payment of settlement of any indebtedness or obligation whatsoever of any district created under the provisions of chapter 49-35.
Source: SL 1950 (SS), ch 17, § 60; SDC Supp 1960, § 52.1759.
49-39-9. Default on bonds--Operation of district by creditors--Priority of payment--Restoration of district to control.
In order to protect and safeguard the security and the rights of the purchasers or holders of revenue debentures, notes, warrants, or other evidences of indebtedness, issued by any consumers power district under this chapter, such district may agree with such purchasers or holders that in the event of default in the payment of interest on, or principal of, any such revenue debentures, notes, warrants, or other evidences of indebtedness, or in the event of default in performance of any duty or obligation of such district in connection therewith, such purchasers or holders, or trustee selected by them, may take possession and control of the business and the property of the district, and proceed to operate the same, and to collect and receive the income thereof, and after paying all necessary and proper operating expenses and all other proper disbursements or liabilities made or incurred, use the surplus, if any there be, of the revenues of the district as follows:
(1) In the payment of all outstanding past-due interest on each issue of revenue debentures, notes, warrants, or other evidences of indebtedness, so far as such net revenues will go, and paying pro rata the interest due on each issue thereof when there is not enough to pay in full all of the interest; and
(2) If any sums shall remain after the payment of interest as aforesaid, then in the payment of the revenue debentures, notes, warrants, or other evidences of indebtedness, which, by the terms thereof, shall be due and payable on each outstanding issue in accordance with the terms thereof, and paying pro rata when the money available is not sufficient to pay in full.
When all legal taxes and charges, and all arrears of interest, and all matured revenue debentures, notes, warrants, or other evidences of indebtedness, have been paid in full, the control of the business and the possession of the property of the district shall then be restored to such district. The privilege herein granted shall be a continuing one as often as the occasion therefor may arise.
Source: SL 1950 (SS), ch 17, § 62; SDC Supp 1960, § 52.1761.
49-39-10. Default on bonds--Court appointment of receiver--Authority of receiver to operate district--Discharge of receiver and return of district to control.
The board of directors of any consumers power district issuing revenue debentures, notes, warrants, or other evidences of indebtedness, under this chapter, is hereby also authorized and empowered to agree and contract with the purchasers or holders thereof that in the event of default in the payment of interest on, or principal of, any such revenue debentures, notes, warrants, or other evidences of indebtedness, issued, or in the event of default in the performance of any duty or obligation under any agreement by such district, the holder or holders of such revenue debentures, notes, warrants, or other evidences of indebtedness then outstanding shall be entitled as a matter of right, upon application to a court of competent jurisdiction, to have appointed a receiver of the business and property of the district including all tolls, rents, revenues, issues, income, receipts, profits, benefits and additions derived, received or had thereof or therefrom, with power to operate and maintain such business and property, collect, receive and apply all revenue, income and receipts arising therefrom, and prescribe rates, tolls and charges, in the same way and manner as the district might do. Whenever all defaults in the payment of principal of, and interest on, such revenue debentures, notes, warrants, or other evidences of indebtedness, and any other defaults under any agreement made by the district, shall have been made good, such receiver shall be discharged by the court and shall thereupon surrender control of the business and possession of the property in his hands to the district.
Source: SL 1950 (SS), ch 17, § 63; SDC Supp 1960, § 52.1762.
49-39-11. Pledges of revenues and refunding securities--Validation--Retroactive application.
Sections 49-39-2 and 49-39-4 are retroactive and are effective as to any resolution or agreement adopted by any consumers power district with the purchasers or holders of revenue debentures, notes, warrants, bonds or other evidences of indebtedness heretofore or hereafter adopted or entered into pursuant to this chapter.
Source: SL 1983, ch 345, § 2; SL 1983, ch 346, § 2.
49-40-1
Conditions under which assets may be transferred or encumbered.
49-40-2
Hypothecation of assets permitted.
49-40-3
Sale of consumers power district assets.
49-40-3.1
Sale of assets--Retroactive application.
49-40-4
Right of municipality to purchase portion of assets within boundaries.
49-40-5
Inability to agree with municipality on price--Court determination--Basis of
determination.
49-40-6
Allocation of bonded indebtedness as between municipality and other transferee--Terms of court award.
49-40-7
Repealed.
49-40-8
Lease or alienation of facilities within municipality.
49-40-9
Petition for dissolution of district--Conditions under which dissolution may be
permitted--Notice of dissolution--Contents of notice--Expenses of dissolution.
49-40-10
Court hearing and investigation respecting dissolution--Filing order of dissolution
with clerk of courts and secretary of state.
49-40-1. Conditions under which assets may be transferred or encumbered.
No power plant or system owned by a consumers power district shall be sold, alienated or mortgaged by such district, except under the circumstances set forth in this chapter.
Source: SL 1950 (SS), ch 17, § 59; SDC Supp 1960, § 52.1758.
49-40-2. Hypothecation of assets permitted.
If, in order to borrow money, it shall become necessary that a consumers power district mortgage, or otherwise hypothecate, any of its said property or assets to secure the payment of a loan or loans made to it, such district is hereby authorized and empowered to do so.
Source: SL 1950 (SS), ch 17, § 59; SDC Supp 1960, § 52.1758; SL 1975, ch 288.
49-40-3. Sale of consumers power district assets.
Any consumers power district may sell any power plant, electric generating plant, electric transmission, or distribution system, or any part thereof, for any sum and upon any terms that the board of directors of the district may consider fair and reasonable.
Source: SL 1950 (SS), ch 17, § 64; SDC Supp 1960, § 52.1763; SL 1983, ch 347, § 1; SL 2017, ch 198, § 1.
49-40-3.1. Sale of assets--Retroactive application.
Section 49-40-3 is retroactive and is effective as to any resolution or agreement adopted by any consumers power district.
Source: SL 1983, ch 347, § 2.
49-40-4. Right of municipality to purchase portion of assets within boundaries.
Whenever any consumers district shall, as provided in chapters 49-35 to 49-40, inclusive, acquire, by purchase, lease or otherwise, any electric distribution system, or any part or parts thereof, situated within or partly within any municipality, if any part of such system be within such municipality, such acquisition shall be upon the condition that such municipality may purchase, and such district shall be required to sell to such municipality such electric distribution system, situated within or partly within such municipality, but not within the corporate limits of any other municipality, by paying to such district such sum as is fair and reasonable, including reasonable severance damages.
Source: SL 1950 (SS), ch 17, § 65; SDC Supp 1960, § 52.1764.
49-40-5. Inability to agree with municipality on price--Court determination--Basis of determination.
If any municipality and consumers power district shall fail to agree upon a price and terms for the sale of property to such municipality pursuant to § 49-40-4 the procedure for determining such price and terms of sale, and for compelling such sale shall be the same as is provided by chapter 21-35. In determining the amount of severance damages, the court shall take into account, together with other relevant factors, the economic effect, if any, caused by the severance therefrom of the part taken upon the system as a going concern as it will be and remain after the severance.
Source: SL 1950 (SS), ch 17, § 65; SDC Supp 1960, § 52.1764.
49-40-6. Allocation of bonded indebtedness as between municipality and other transferee--Terms of court award.
When the sum that is fair and reasonable shall have been determined as provided in § 49-40-5, the court shall deduct therefrom and allow as a credit upon such sum an amount that bears the same proportion to such sum as the amount of the bonds that have been paid, redeemed or liquidated, and the reserves established therefor by said district, out of the earnings from the operation of the district while such municipality was within and a part of such district, bears to the total amount of the bonded indebtedness of such district issued to finance the purchase price and the cost of construction of the entire property of such district. In entering its award the court shall show how much of the total thereof was allowed for the physical property taken and how much was allowed for other values and damages, if any.
Source: SL 1950 (SS), ch 17, § 65; SDC Supp 1960, § 52.1764.
49-40-8. Lease or alienation of facilities within municipality.
If a consumers power district is comprised of territory wholly within the corporate limits of a first or second class municipality then the district shall have power to lease or alienate the franchises, plant or physical equipment of the district to any private person, firm, association or corporation in accordance with the provisions of §§ 9-39-37 and 9-39-38.
Source: SL 1950 (SS), ch 17, § 69; SDC Supp 1960, § 52.1768; SL 1992, ch 60, § 2; SL 2017, ch 198, § 3.
49-40-9. Petition for dissolution of district--Conditions under which dissolution may be permitted--Notice of dissolution--Contents of notice--Expenses of dissolution.
Whenever a petition signed by a majority of the members of the board of directors or by twenty-five or more qualified voters of the state residing within the territorial boundaries of any district organized under and by virtue of chapter 49-35, shall be presented to the circuit court for the county where the principal place of business of the district is located, praying for the dissolution of such district, and it shall appear from the petition that such district has no property of any kind, owes no debts of any kind, that the district is not functioning, has ceased to function, and probably will not function in the future, the court shall forthwith publish a notice for two successive weeks in a legal newspaper of general circulation published in the district, or, if no legal newspaper is published in the district, then in any legal newspaper having general circulation therein, setting forth, in substance and in a clear and concise manner, the nature and prayer of the petition, and setting a time and place for a public hearing by the court upon the petition. The persons filing such petition for dissolution shall advance and pay the necessary expenses incurred.
Source: SL 1950 (SS), ch 17, § 77; SDC Supp 1960, § 52.1776.
49-40-10. Court hearing and investigation respecting dissolution--Filing order of dissolution with clerk of courts and secretary of state.
After such hearing and such independent investigation as may be deemed advisable, the court shall grant or reject the prayer of a petition filed pursuant to § 49-40-9, and, if the prayer of the petition is granted, the court shall thereupon issue its order declaring the district dissolved and terminated. The order of court shall thereupon be filed in the office of the clerk of courts of the county in which the petition for dissolution is filed, and a certified copy of such order shall immediately be filed in the Office of the Secretary of State, and a certified copy shall be filed in the office of the clerk of courts of each county into which any part of the district may extend. The district shall thereupon be dissolved, and cease to exist.
Source: SL 1950 (SS), ch 17, § 77; SDC Supp 1960, § 52.1776.
CHAPTER 49-41B
ENERGY CONVERSION AND TRANSMISSION FACILITIES
49-41B-1 Legislative findings--Necessity to require permit for facility.
49-41B-1.1 49-41B-1.1. Repealed by SL 1981, ch 340, § 1.
49-41B-2 Definition of terms.
49-41B-2.1 Transmission facility defined.
49-41B-2.2 Modified facility defined.
49-41B-3 Ten-year plan required of utility planning to own or operate energy conversion facilities--Updating of plan--Contents.
49-41B-4 Permit required before construction of facility after certain date.
49-41B-4.1 Trans-state transmission facility--Permit and legislative approval required.
49-41B-4.2 Trans-state transmission line--Criteria required.
49-41B-4.3 Seasonal diversity exchange of electric power.
49-41B-4.4 Trans-state transmission facility--Eminent domain--Acquisition of fee in land contiguous to right-of-way--Divestiture of agricultural land.
49-41B-4.5 Foreclosure on nondivested agricultural land.
49-41B-4.6 Corporate ownership of agricultural land.
49-41B-4.7 Divestiture of less than fair market value not required.
49-41B-4.8 49-41B-4.8. Repealed by SL 1981, ch 343, § 5, as amended by SL 1983, ch 350, § 2.
49-41B-5 Notification of intent to apply for permit required before filing application--Time--Prefiling conference if applicant requests.
49-41B-5.1 Posting of signs on proposed site--Time for posting--Contents.
49-41B-5.2 Notification of area landowners by mail--Time for notification--Copy of application filed with county auditor.
49-41B-6 Designation of affected area by commission after notification of intent filed--Local review committee designated, composition.
49-41B-7 Assessment by local review committee--Factors included.
49-41B-8 Employment of personnel by committee--Expenses--Information furnished by commission.
49-41B-9 Financing of committee expenses.
49-41B-10 Final report of committee.
49-41B-11 Applications for permit--Filing deadline--Form--Contents.
49-41B-12 Deposit required--Disposition--Minimum and maximum fees--Environmental impact fee.
49-41B-13 Denial, return, or amendment of application--Grounds--Applicant permitted to make changes.
49-41B-14 Further data provided prior to hearings if required--Prehearing conference.
49-41B-15 Commission procedure following receipt of application for permit.
49-41B-16 Public input hearing--Location--Publication of notice.
49-41B-17 Parties to proceedings under chapter.
49-41B-17.1 County auditor as agent for service of process on party--Request for personal service.
49-41B-17.2 Contested case hearing.
49-41B-18 49-41B-18. Repealed by SL 1982, ch 332, § 2.
49-41B-19 Evidence from state agencies or local government.
49-41B-19.1 Public comments on application.
49-41B-20 Final report heard by commission at final hearing--Decision on application--Adoption of committee's report.
49-41B-21 Environmental impact statement.
49-41B-22 Applicant's burden of proof.
49-41B-22.1 Reapplication for permit--Applicant's burden of proof--Environmental impact statement not required.
49-41B-22.2 Reapplication for permit--Discussion of commission as to applicant's burden of proof.
49-41B-22.3 Reapplication for permit--Deposits and fees required.
49-41B-23 Waiver of compliance with chapter on grounds of urgency, disaster, or civil disorder.
49-41B-24 Permit for energy conversion facilities, AC/DC conversion facilities, or transmission facilities--Complete findings by commission required within year of application.
49-41B-24.1 Extension of deadlines.
49-41B-25 Permit for wind or solar energy facility--Time for complete findings by commission--Notice of decision.
49-41B-25.1 Notice to commission of planned construction of certain wind energy projects.
49-41B-25.2 Wind energy facility to include aircraft detection lighting system.
49-41B-26 Accounting for expenditures of applicant's deposit--Refund of unused moneys.
49-41B-27 Construction, expansion, and improvement of facilities.
49-41B-28 Supersession of local land use controls--Exception.
49-41B-29 Transfer of permit--Commission approval--Rules.
49-41B-30 Circuit court review of commission decision by aggrieved party--Procedures.
49-41B-31 Order not stayed by appeal--Stay or suspension by court.
49-41B-32 Surety bond required if order stayed or suspended--Other security.
49-41B-33 Revocation or suspension of permit--Grounds.
49-41B-34 Violation of permit requirements as misdemeanor--Civil penalty--Continuing offense.
49-41B-35 Promulgation of rules.
49-41B-36 Authority to route or locate facilities not delegated to commission.
49-41B-37 Citation of chapter.
49-41B-38 Indemnity bond for damage to roads and bridges.
49-41B-39 Financial security for decommissioning of wind turbines or solar facilities.
49-41B-40 Rejected by referendum.
49-41B-41 Rejected by referendum.
49-41B-42 Rejected by referendum.
49-41B-43 Rejected by referendum.
49-41B-44 Rejected by referendum.
49-41B-45 Rejected by referendum.
49-41B-46 Rejected by referendum.
49-41B-1. Legislative findings--Necessity to require permit for facility.
The Legislature finds that energy development in South Dakota and the Northern Great Plains significantly affects the welfare of the population, the environmental quality, the location and growth of industry, and the use of the natural resources of the state. The Legislature also finds that by assuming permit authority, that the state must also ensure that these facilities are constructed in an orderly and timely manner so that the energy requirements of the people of the state are fulfilled. Therefore, it is necessary to ensure that the location, construction, and operation of facilities will produce minimal adverse effects on the environment and upon the citizens of this state by providing that a facility may not be constructed or operated in this state without first obtaining a permit from the commission.
Source: SL 1977, ch 390, § 2; SL 2005, ch 250, § 1; SL 2024, ch 189, § 4, rejected Nov. 5, 2024.
49-41B-2. Definition of terms.
Terms as used in this chapter mean:
(1) "AC/DC conversion facility," an asynchronous AC to DC to AC tie that is directly connected to a transmission facility or a facility that connects an AC transmission facility with a DC transmission facility or vice versa;
(2) "Associated facilities," facilities which include aqueducts, diversion dams, transmission substations, storage ponds, reservoirs, or cooling ponds;
(3) "Carbon dioxide," a fluid that consists of more than ninety percent carbon dioxide molecules compressed in a supercritical state;
(4) "Commission," the Public Utilities Commission;
(5) "Construction," any clearing of land, excavation, or other action that would affect the environment of the site for each land or rights of way upon or over which a facility may be constructed or modified, but not including activities incident to preliminary engineering or environmental studies. This term includes modifications to facilities as defined in § 49-41B-2.2;
(6) "Energy conversion facility," any new facility, or facility expansion, designed for or capable of generation of one hundred megawatts or more of electricity, but does not include any wind or solar energy facilities;
(7) "Facility," any energy conversion facility, AC/DC conversion facility, transmission facility, solar energy facility, or wind energy facility, and associated facilities;
(8) "Permit," the permit issued by the commission under this chapter required for the construction and operation of a facility;
(9) "Person," an individual, partnership, limited liability company, joint venture, private or public corporation, association, firm, public service company, cooperative, political subdivision, municipal corporation, government agency, public utility district, or any other public or private entity, however organized;
(10) "Siting area," that area within ten miles in any direction of a proposed energy conversion facility, AC/DC conversion facility, or which is determined by the commission to be affected by a proposed energy conversion facility;
(11) "Trans-state transmission facility," an electric transmission line and its associated facilities which originates outside the State of South Dakota, crosses this state and terminates outside the State of South Dakota; and which transmission line and associated facilities delivers electric power and energy of twenty-five percent or less of the design capacity of such line and facilities for use in the State of South Dakota;
(12) "Utility," any person engaged in and controlling the generation or transmission of electric energy and gas or liquid transmission facilities as defined by § 49-41B-2.1;
(13) "Wind energy facility," a new facility, or facility expansion, consisting of a commonly managed integrated system of towers, wind turbine generators with blades, power collection systems, and electric interconnection systems, that converts wind movement into electricity and that is designed for or capable of generation of one hundred megawatts or more of electricity. A wind energy facility expansion includes the addition of new wind turbines, designed for or capable of generating twenty-five megawatts or more of electricity, which are to be managed in common and integrated with existing turbines and the combined megawatt capability of the existing and new turbines is one hundred megawatts or more of electricity. The number of megawatts generated by a wind energy facility is determined by adding the nameplate power generation capability of each wind turbine;
(14) "Solar energy facility," a new facility, or facility expansion, consisting of a commonly managed integrated system of solar panels, power collection systems, electric interconnection systems, and associated facilities, that converts solar energy into electricity and is designed for or capable of generating one hundred megawatts AC or more of electricity. A facility expansion includes the addition of new solar panels, designed for or capable of generating twenty-five megawatts AC or more of electricity, that are to be managed in common and integrated with existing solar panels, and the combined megawatt capability of the existing and new solar panels is one hundred megawatts AC or more of electricity.
Source: SL 1977, ch 390, § 3; SL 1979, ch 318, § 2; SL 1980, ch 327, § 2; SL 1980, ch 328, § 1; SL 1981, ch 341; SL 1981, ch 342; SL 1983, ch 348; SL 1994, ch 351, § 140; SL 1994, ch 358, §§ 2, 3; SL 2005, ch 250, § 2; SL 2006, ch 242, § 1; SL 2009, ch 243, § 1; SL 2010, ch 226, § 1; SL 2013, ch 237, § 1; SL 2015, ch 235, § 1; SL 2019, ch 200, § 1.
49-41B-2.1. Transmission facility defined.
For the purposes of this chapter, a transmission facility is:
(1) An electric transmission line and associated facilities with a design of more than one hundred fifteen kilovolts. However, if the transmission line is less than two thousand six hundred forty feet, does not cross any public highway, and eminent domain is not used to obtain right of way, the transmission line is not a transmission facility for purposes of this chapter; or
(2) A gas or liquid transmission line and associated facilities designed for or capable of transporting coal, gas, hydrogen, liquid hydrocarbons, liquid hydrocarbon products, or carbon dioxide, excluding any gas or liquid transmission lines or associated facilities which meet any of the following criteria:
(a) Lines or facilities that are used exclusively for distribution or gathering;
(b) Steel pipe and associated facilities that cannot be operated at a hoop stress of twenty percent or more of specified minimum yield strength as defined by 49 C.F.R. § 192.3 (January 1, 2024) or plastic pipe and associated facilities that cannot be operated at a design pressure of fifty percent or more as determined by the formula specified in 49 C.F.R. § 192.121 (January 1, 2024); or
(c) Pipe which has nominal diameter of less than four inches and not more than one mile of the entire line is constructed outside of public right-of-way.
Nothing in this section precludes a utility from applying to the commission for a permit for the construction of an electric transmission line and associated facilities with a design of one hundred fifteen kilovolts or less. The transmission line and associated facilities is a transmission facility for the purposes of this chapter.
Source: SL 1994, ch 358, § 1; SL 2007, ch 274, § 1; SL 2009, ch 243, § 2; SL 2009, ch 244, § 1; SL 2010, ch 226, § 2; SL 2013, ch 237, § 2; SL 2017, ch 199, § 1; SL 2024, ch 190, § 1.
49-41B-2.2. Modified facility defined.
For the purposes of this chapter, a facility is considered to be modified if:
(1) A gas or liquid transmission line that did not meet the definition of a transmission facility prior to building the line is to be modified in such a way that the line will meet the definition of a transmission facility after the modification is complete. No permit is required for steel pipe and associated facilities, as described in subsection 49-41B-2.1(2)(b), operating on July 1, 2010, that have been historically calculated at an ongoing constant pressure of less than twenty percent of specified minimum yield strength unless the pipeline operator intends to increase the ongoing constant pressure to twenty percent or more. No permit is required for plastic pipe and associated facilities, as described in subsection 49-41B-2.1(2)(b), operating on July 1, 2010, that have been historically calculated at an ongoing constant pressure of less than fifty percent of the design pressure unless the pipeline operator intends to increase the ongoing constant pressure to fifty percent or more;
(2) An electric transmission line that does not meet the definition of a transmission facility prior to building the line is to be modified in such a way that the line will meet the definition of a transmission facility after the modification is complete or the nameplate carrying capacity of an electric transmission facility is to be increased by an additional twenty kilovolts or greater; or
(3) The nameplate generating capacity of an energy conversion facility is to be increased by a net additional one hundred megawatts or greater.
Source: SL 2010, ch 226, § 3.
49-41B-3. Ten-year plan required of utility planning to own or operate energy conversion facilities--Updating of plan--Contents.
Every utility which owns or operates or plans within the next ten years to own or operate energy conversion facilities shall develop and submit a ten-year plan to the Public Utilities Commission. The plan shall be updated every second year after its submission. The plan shall contain the following:
(1) A description of the general location, size, and type of energy conversion facilities or transmission facilities of two hundred fifty kilovolts or more to be owned or operated by the utility during the ensuing ten years, as well as those facilities to be removed from service during the planning period;
(2) A description of the efforts by the utility to coordinate the plan with other utilities so as to provide a coordinated regional plan for meeting the utility needs of the region;
(3) A statement of the projected demand for the service rendered by the utility for the ensuing ten years and the underlying assumptions for the projection, with such information being as geographically specific as possible and a description of the manner and extent to which the utility will meet the projected demand; and
(4) Any other relevant information as may be requested by the commission.
Source: SL 1977, ch 390, § 23.
49-41B-4. Permit required before construction of facility after certain date.
No utility may begin construction of a facility in the state on or after July 1, 1979, without first having obtained a permit issued with respect to such facility by the Public Utilities Commission pursuant to this chapter. No such permit is required for an associated facility to be constructed for the purpose of transporting water if the water management board has issued a permit to appropriate water for the use to be made by that facility. Any facility, with respect to which a permit is required, shall thereafter be constructed, operated, and maintained in conformity with such permit including any terms, conditions, or modifications contained therein.
Source: SL 1977, ch 390, § 4; SL 1983, ch 349.
49-41B-4.1. Trans-state transmission facility--Permit and legislative approval required.
No utility shall begin construction of a trans-state transmission facility within the state without first having obtained a permit as required in this chapter and approval by an act of the South Dakota Legislature.
Source: SL 1979, ch 318, §§ 3, 5; SL 1980, ch 327, § 4.
49-41B-4.2. Trans-state transmission line--Criteria required.
The South Dakota Legislature before approving a proposed trans-state transmission line shall find that each of the following criteria has been met:
(1) That the proposed trans-state transmission line and route will comply with all applicable laws and rules;
(2) That the proposed trans-state transmission line and route will not pose a threat of serious injury to the environment nor to the social and economic condition of inhabitants or anticipated inhabitants in the siting area;
(3) That the proposed trans-state transmission line and route will not substantially impair the health, safety or welfare of the inhabitants;
(4) That the proposed trans-state transmission line and route will not unduly interfere with the orderly development of the region with due consideration having been given to views of the governing bodies of effective local units of government;
(5) That the proposed trans-state transmission facility will be consistent with the public convenience and necessity in any area or areas which will receive electrical service, either direct or indirect, from the facility, regardless of the state or states in which area or areas are located.
Source: SL 1979, ch 318, § 4; SL 1980, ch 327, § 3; SL 1981, ch 340, § 2.
49-41B-4.3. Seasonal diversity exchange of electric power.
The transmission line to be used in the seasonal diversity exchange of electric power as set forth in the Public Utility Regulatory Policies Act of 1978, Public Law 95-617, Title 6, Section 602, is hereby declared to be subject to this chapter.
Source: SL 1979, ch 318, § 5; SL 1980, ch 327, § 5.
49-41B-4.4. Trans-state transmission facility--Eminent domain--Acquisition of fee in land contiguous to right-of-way--Divestiture of agricultural land.
In the exercise of the authority of eminent domain pursuant to chapter 21-35 to acquire right-of-way or other property for a trans-state transmission facility as defined by subdivision 49-41B-2(9) a property owner shall have the option to require the utility to take a fee interest in any amount of contiguous land outside the designated right-of-way which he owns and elects in writing to transfer to the utility within sixty days of receipt of the notice of filing of a petition pursuant to § 21-35-1. The fee acquisition of contiguous lands as required by this section shall be considered a taking for a public purpose and for use in the operation of the utility. However, the utility shall be required to divest itself completely of all lands used for farming or capable of being used for farming within five years after the date of acquisition pursuant to this section. If these lands are not divested as provided by this section they shall be sold at a public sale as provided by chapter 21-47 relating to foreclosure of a real property mortgage by action. No land more than one-half mile from the center line of the power line need be taken.
Source: SL 1980, ch 327, § 9.
49-41B-4.5. Foreclosure on nondivested agricultural land.
The attorney general shall commence action pursuant to chapter 21-47 where there is reason to believe that the utility has not complied with the provisions of § 49-41B-4.4 relating to the divestiture of agricultural lands within five years of their acquisition.
Source: SL 1980, ch 327, § 10.
49-41B-4.6. Corporate ownership of agricultural land.
The restrictions on corporate ownership of agricultural land pursuant to § 47-9A-3 shall not apply to acquisitions of agricultural land required by a proceeding pursuant to § 49-41B-4.4.
Source: SL 1980, ch 327, § 11.
49-41B-4.7. Divestiture of less than fair market value not required.
No utility required to divest lands pursuant to this chapter, shall be required to do so for less than fair market value.
Source: SL 1980, ch 327, § 12.
49-41B-5. Notification of intent to apply for permit required before filing application--Time--Prefiling conference if applicant requests.
A notification of intent to apply for a permit for construction of an energy conversion facility or AC/DC conversion facility shall be filed with the Public Utilities Commission at least six months before filing an application as required in § 49-41B-11. A prefiling conference may be requested by the applicant and such request shall be granted by the commission.
Source: SL 1977, ch 390, § 5; SL 2006, ch 242, § 2.
49-41B-5.1. Posting of signs on proposed site--Time for posting--Contents.
The utility shall post signs on the area where the energy conversion facility or AC/DC conversion facility is proposed to be sited to notify the public. The signs shall be posted on areas that are clearly visible to an ordinarily observant person and shall be posted within thirty days after the filing of the notification of intent to apply for a permit for the construction of a proposed energy conversion facility or AC/DC conversion facility. The signs shall include the name and contact information of the utility and a brief description of the proposed energy conversion facility or AC/DC conversion facility.
Source: SL 2006, ch 242, § 8.
49-41B-5.2. Notification of area landowners by mail--Time for notification--Copy of application filed with county auditor.
Within thirty days following the filing of an application for permit, the applicant shall notify, in writing, the owner of record of any land that is located within one-half mile of the proposed site where the facility is to be constructed. For purposes of this section, the owner of record is limited to the owner designated to receive the property tax bill sent by the county treasurer. The notice shall be mailed by certified mail. The notice shall contain a description of the nature and location of the facility. Any notification required by this section shall state the date, time, and location of the public input meeting. The applicant shall also file a copy of the application with the auditor of each county in which the proposed facility will be located.
Source: SL 2006, ch 242, § 7; SL 2008, ch 246, § 1; SL 2010, ch 226, § 4; SL 2019, ch 200, § 4.
49-41B-6. Designation of affected area by commission after notification of intent filed--Local review committee designated, composition.
Within thirty days after the filing of the notification of intent to apply for a permit for the construction of an energy conversion facility or AC/DC conversion facility, the Public Utilities Commission shall designate the affected area and a local review committee composed of:
(1) The chair of the tribal council of each affected reservation;
(2) The president of the board of education of each affected school district;
(3) The chair of the county commissioners of each affected county;
(4) The mayor of each affected municipality; and
(5) A representative of the applicant utility designated by the utilities.
Source: SL 1977, ch 390, § 10; SL 2006, ch 242, § 3.
49-41B-7. Assessment by local review committee--Factors included.
The local review committee shall meet to assess the extent of the potential social and economic effect to be generated by the proposed facility, to assess the affected area's capacity to absorb those effects at various stages of construction, and formulate mitigation measures. The assessment of the local review committee shall include consideration of the temporary and permanent alternatives in the following areas:
(1) Housing supplies;
(2) Educational facilities and manpower;
(3) Water supply and distribution;
(4) Waste water treatment and collection;
(5) Solid waste disposal and collection;
(6) Law enforcement;
(7) Transportation;
(8) Fire protection;
(9) Health;
(10) Recreation;
(11) Government; and
(12) Energy.
Source: SL 1977, ch 390, § 12; SL 2010, ch 226, § 5.
49-41B-8. Employment of personnel by committee--Expenses--Information furnished by commission.
The local review committee may employ such persons as determined by the Public Utilities Commission which may be required to carry out the provisions of § 49-41B-7 and the expenses of said staff shall be paid from the initial filing fee. The commission shall furnish copies of the application to the members of the local review committee and all other information which the commission determines that the committee should receive.
Source: SL 1977, ch 390, § 14.
49-41B-9. Financing of committee expenses.
Expense payments and other authorized payments to members of the local review committee for their service on the committee shall be financed by the unit of government or utility which they represent.
Source: SL 1977, ch 390, § 11.
49-41B-10. Final report of committee.
Within seven months after the application is filed the local review committee shall file a final report with the Public Utilities Commission which includes the recommendations of the committee as to mitigation measures and minority reports.
Source: SL 1977, ch 390, § 13.
49-41B-11. Applications for permit--Filing deadline--Form--Contents.
All applications for a permit shall be filed with the Public Utilities Commission not less than six months prior to the planned date of commencement of construction of a facility in such form as prescribed by rules, and shall contain, but not be limited to, the following information:
(1) The name and address of the applicant;
(2) Description of the nature and location of the facility;
(3) Estimated date of commencement of construction and duration of construction;
(4) Estimated number of employees employed at the site of the facility during the construction phase and during the operating life of the facility. Estimates shall include the number of employees who are to be utilized but who do not currently reside within the area to be affected by the facility;
(5) Future additions and modifications to the facility which the applicant may wish to be approved in the permit;
(6) A statement of the reasons for the selection of the proposed location;
(7) Person owning the proposed facility and person managing the proposed facility;
(8) The purpose of the facility;
(9) Estimated consumer demand and estimated future energy needs of those consumers to be directly served by the facility;
(10) The potential short and long range demands on any estimated tax revenues generated by the facility for the extension or expansion of public services within the affected areas;
(11) Environmental studies prepared relative to the facility;
(12) Estimated construction cost of the facility.
Source: SL 1977, ch 390, § 7.
49-41B-12. Deposit required--Disposition--Minimum and maximum fees--Environmental impact fee.
At the time of filing an application as required in § 49-41B-11, an applicant must deposit the minimum fee with the commission. If required by the commission, an applicant must remit an amount to be determined by the commission based upon the actual cost of investigating, reviewing, processing, and serving notice of an application. The amount must be deposited with the state treasurer and credited to a subfund within the designated revenue fund and may only be disbursed on vouchers approved by the commission for the actual cost of investigating, reviewing, processing, and serving notice of the application. Except as otherwise agreed to by an applicant, the maximum fee chargeable may not exceed one-quarter of one percent of the first one hundred million dollars of estimated construction cost plus one-twentieth of one percent of all additional estimated construction costs of the facility. To exceed the maximum fee when the applicant has not agreed to a fee higher than the maximum amount, the commission must make a finding upon a motion from the commission staff that all costs incurred were reasonably necessary to investigate, review, process, and serve notice of the application. In these circumstances, the commission must seek reimbursement for those costs, during the next regular legislative session. However, the minimum total fee chargeable may not be less than twenty thousand dollars. The minimum fee is nonrefundable unless ordered by the commission.
If the commission determines that an environmental impact statement should be prepared as provided under chapter 34A-9 before taking final action on an application under this chapter, the maximum fee chargeable above may be increased to an amount not to exceed one-half of one percent of the first one hundred million dollars of estimated construction cost plus one-twentieth of one percent of all additional estimated construction costs of the facility. However, the provisions of this paragraph do not apply in cases in which a detailed environment impact study has been completed pursuant to the requirements of the National Environmental Policy Act of 1969 as amended to January 1, 2009, and implementing regulations thereto if such a statement is available to the commission at least thirty days prior to the time the commission is required to render a decision under § 49-41B-24 or 49-41B-25. The provisions of this section apply to all pending permit applications and future permit applications before the commission.
Source: SL 1977, ch 390, § 6; SL 1981, ch 344; SL 2009, ch 245, § 1; SL 2024, ch 191, § 1.
49-41B-13. Denial, return, or amendment of application--Grounds--Applicant permitted to make changes.
An application may be denied, returned, or amended at the discretion of the Public Utilities Commission for:
(1) Any deliberate misstatement of a material fact in the application or in accompanying statements or studies required of the applicant;
(2) Failure to file an application generally in the form and content required by this chapter and the rules promulgated thereunder; or
(3) Failure to deposit the initial amount with the application as required by § 49-41B-12.
The commission shall, upon denying or returning an application, provide the applicant with reasons for such action and shall allow the applicant to make changes in the application in order to comply with the requirements of this chapter.
Source: SL 1977, ch 390, § 28.
49-41B-14. Further data provided prior to hearings if required--Prehearing conference.
The Public Utilities Commission may require that further data be provided prior to the public hearings. The commission or applicant may also request that a prehearing conference be held prior to a public hearing which request shall be granted.
Source: SL 1977, ch 390, § 8.
49-41B-15. Commission procedure following receipt of application for permit.
Within thirty days following receipt of an application for a permit, the commission shall:
(1) Schedule a public input meeting;
(2) Notify the applicant of the public input meeting; and
(3) Serve notice of the application and public input meeting upon the governing bodies of the counties and municipalities totally or partially within the area of the proposed facility.
Source: SL 1977, ch 390, § 9; SL 2006, ch 242, § 4; SL 2008, ch 246, § 2; SL 2019, ch 200, § 5.
49-41B-16. Public input hearing--Location--Publication of notice.
The commission shall hold any public input meeting as close as practical to the proposed facility. The commission shall publish a notice of the time, place, and purpose of any public input meeting three times in at least one newspaper of general circulation in any county totally or partially within the area of the proposed facility. Each notification required in this section shall state the date, time, and place of the public input meeting. The first notice shall be published no later than thirty days prior to the date of the public input meeting. The second notice shall be published no later than twenty days prior to the date of the public input meeting. The third notice shall be published no later than two days prior to the date of the public input meeting.
Source: SL 1977, ch 390, § 15; SL 2019, ch 200, § 6.
49-41B-17. Parties to proceedings under chapter.
The parties to a proceeding under this chapter unless otherwise provided include:
(1) The commission staff;
(2) The applicant;
(3) Each municipality, county and governmental agency in the area where the facility is proposed to be sited, if timely application therefore is made as determined by the commission pursuant to rule; and
(4) Any person residing in the area where the facility is proposed to be sited, or any directly interested person, if timely application therefore is made as determined by the commission pursuant to rule. An application for party status in a proceeding under this chapter must contain a detailed statement of the interests and reasons prompting the application.
Source: SL 1977, ch 390, § 20; SL 1982, ch 332, § 1; SL 2019, ch 200, § 7.
49-41B-17.1. County auditor as agent for service of process on party--Request for personal service.
The county auditor of each county where a facility is proposed to be sited is the agent for service of process upon a party. For energy conversion facilities, all counties in the designated siting area are included. Any party may receive all material filed in the matter by making a specific request to the commission for personal service of the material.
Source: SL 1982, ch 332, § 3; SL 2008, ch 246, § 3.
49-41B-17.2. Contested case hearing.
A party to a proceeding under this chapter as provided in § 49-41B-17 is entitled to a contested case hearing before the commission pursuant to chapter 1-26.
Source: SL 2019, ch 200, § 12.
49-41B-19. Evidence from state agencies or local government.
The Public Utilities Commission shall also hear and receive evidence presented by any state department, agency, or units of local government relative to the environmental, social, and economic conditions and projected changes therein.
Source: SL 1977, ch 390, § 17; SL 2024, ch 189, § 5, rejected Nov. 5, 2024.
49-41B-19.1. Public comments on application.
The commission shall accept public comments on all applications filed under this chapter. Comments may be collected and forwarded to the commission on behalf of the commentators. The commission shall publish on the commission's website all comments that are accepted pursuant to this section, and may publish substantially similar comments by publishing one of the comments and attributing the content of the comment to a number of persons.
Source: SL 2019, ch 200, § 11.
49-41B-20. Final report heard by commission at final hearing--Decision on application--Adoption of committee's report.
The final report shall be heard by the Public Utilities Commission at the final hearing wherein the commission makes its decision on the application for a permit. The local review committee report may be adopted in whole or in part, at the discretion of the commission.
Source: SL 1977, ch 390, § 13.
49-41B-21. Environmental impact statement.
Prior to the issuance of a permit, the commission may prepare or require the preparation of an environmental impact statement that complies with the provisions of chapter 34A-9.
Source: SL 1977, ch 390, § 16; SL 2007, ch 274, § 2.
49-41B-22. Applicant's burden of proof.
The applicant has the burden of proof to establish by a preponderance of the evidence that:
(1) The proposed facility will comply with all applicable laws and rules;
(2) The facility will not pose a threat of serious injury to the environment nor to the social and economic condition of inhabitants or expected inhabitants in the siting area. An applicant for an electric transmission line, a solar energy facility, or a wind energy facility that holds a conditional use permit from the applicable local units of government is determined not to threaten the social and economic condition of inhabitants or expected inhabitants in the siting area;
(3) The facility will not substantially impair the health, safety or welfare of the inhabitants; and
(4) The facility will not unduly interfere with the orderly development of the region with due consideration having been given the views of governing bodies of affected local units of government. An applicant for an electric transmission line, a solar energy facility, or a wind energy facility that holds a conditional use permit from the applicable local units of government is in compliance with this subdivision.
Source: SL 1977, ch 390, § 17; SL 1981, ch 340, § 3; SL 1991, ch 386, § 6; SL 2019, ch 200, § 8.
49-41B-22.1. Reapplication for permit--Applicant's burden of proof--Environmental impact statement not required.
Nothing contained herein shall prohibit an applicant from reapplying for a permit previously denied pursuant to § 49-41B-24 or 49-41B-25 within three years from the date of the denial of the original permit. Upon the first such reapplication, the applicant shall have the burden of proof to establish only those criteria upon which the original permit was denied, provided that nothing in the reapplication materially changes the information presented in the original application regarding those criteria upon which the original permit was not denied. However, nothing contained in this provision shall prohibit the Public Utilities Commission from requiring such applicant to meet its burden of proof as to any criteria, upon a specific finding by the commission of a material change in the circumstances regarding those criteria, but the Public Utilities Commission shall not, in any event, prepare or require the preparation of an environmental impact statement.
Source: SL 1982, ch 333, § 1.
49-41B-22.2. Reapplication for permit--Discussion of commission as to applicant's burden of proof.
If a second or subsequent reapplication is filed within three years, or a reapplication is filed after three years, following a denial of a permit pursuant to § 49-41B-24 or 49-41B-25, the Public Utilities Commission may in its discretion decide if an applicant shall have the burden of proof to establish all criteria required in an original application.
Source: SL 1982, ch 333, § 2.
49-41B-22.3. Reapplication for permit--Deposits and fees required.
The provisions of § 49-41B-12 relating to deposits and fees required of applicants shall apply to all reapplications made pursuant to §§ 49-41B-22.1 and 49-41B-22.2.
Source: SL 1982, ch 333, § 3.
49-41B-23. Waiver of compliance with chapter on grounds of urgency, disaster, or civil disorder.
The Public Utilities Commission may waive compliance with and provisions of this chapter if the utility or person submitting an application pursuant to the chapter demonstrates to the commission at a public hearing that an immediate, urgent need for a facility or an associated facility exists and that the utility or person submitting the application did not have knowledge that a need for the facility existed sufficiently in advance to fully comply with the provisions of this chapter. The commission may waive compliance with any of the provisions of this chapter upon receipt of notice by a utility or person that a facility, or an associated facility, has been damaged or destroyed as a result of fire, flood, or other natural disaster, or as a result of insurrection, war, or other civil disorder, and there exists a need for construction of a new facility, or the relation of a previously existing facility or associated facility in order to promote the public health, safety or welfare.
Source: SL 1977, ch 390, § 30.
49-41B-24. Permit for energy conversion facilities, AC/DC conversion facilities, or transmission facilities--Complete findings by commission required within year of application.
Within twelve months of receipt of the initial application for a permit for the construction of energy conversion facilities, AC/DC conversion facilities, or transmission facilities, the commission shall make complete findings in rendering a decision regarding whether a permit should be granted, denied, or granted upon such terms, conditions or modifications of the construction, operation, or maintenance as the commission deems appropriate.
Source: SL 1977, ch 390, § 18; SL 1980, ch 328, § 2; SL 1981, ch 341; SL 2006, ch 242, § 5; SL 2009, ch 243, § 3; SL 2015, ch 235, § 2.
49-41B-24.1. Extension of deadlines.
Upon request of the applicant, the commission may extend the deadlines for commission action established in §§ 49-41B-24 and 49-41B-25.
Source: SL 2019, ch 200, § 10.
49-41B-25. Permit for wind or solar energy facility--Time for complete findings by commission--Notice of decision.
Within nine months of receipt of the initial application for a permit for the construction of a wind energy facility or solar energy facility, the commission shall make complete findings, and render a decision, regarding whether a permit should be granted, denied, or granted upon such terms, conditions, or modifications of the construction, operation, or maintenance as the commission determines are appropriate. In the decision, the commission shall find that the construction of the facility meets all requirements of this chapter. Notice of the commission's decision shall be given to the applicant and to parties to the hearing within ten days following the decision.
Source: SL 1977, ch 390, § 19; SL 2005, ch 250, § 3; SL 2015, ch 235, § 3; SL 2019, ch 200, § 9.
49-41B-25.1. Notice to commission of planned construction of certain wind energy projects.
Any person who plans on constructing a wind energy project consisting of wind turbines with a combined nameplate capacity that exceeds five megawatts shall notify the commission four months prior to the planned start of construction of the project. The notification shall be for informational purposes only and shall state the planned location of the project, the number of wind turbines, the nameplate capacity of the wind turbines, the planned method of interconnection, and the estimated construction start date and construction completion date. If the information provided changes, the informational filing shall be updated to reflect the changes.
Source: SL 2009, ch 246, § 1.
49-41B-25.2. Wind energy facility to include aircraft detection lighting system.
For any wind energy facility that receives a permit under this chapter after July 1, 2019, the facility shall be equipped with an aircraft detection lighting system that meets the requirements set forth by the Federal Aviation Administration for obstruction marking and lighting in Chapter 14 of FAA Advisory Circular (AC) 70/7460-1L, "Obstruction Marking and Lighting," dated December 4, 2015. Any cost associated with the installation, operation, or maintenance of a system under this section is solely the responsibility of any owner of the wind energy facility.
Source: SL 2019, ch 201, § 1.
49-41B-26. Accounting for expenditures of applicant's deposit--Refund of unused moneys.
The commission must provide the applicant with a full financial accounting relating to the expenditures of the amount received pursuant to § 49-41B-12. Except for the twenty thousand dollar minimum fee required pursuant to § 49-41B-12, unused moneys must be refunded to the applicant within thirty days of the commission's decision on the application.
Source: SL 1977, ch 390, § 6; SL 2015, ch 235, § 4; SL 2024, ch 191, § 2.
49-41B-27. Construction, expansion, and improvement of facilities.
Utilities which have acquired a permit in accordance with the provisions of this chapter may proceed to improve, expand, or construct the facility for the intended purposes at any time, subject to the provisions of this chapter; provided, however, that if such construction, expansion and improvement commences more than four years after a permit has been issued, then the utility must certify to the Public Utilities Commission that such facility continues to meet the conditions upon which the permit was issued.
Source: SL 1977, ch 390, § 29.
49-41B-28. Supersession of local land use controls--Exception.
A permit for the construction of a transmission facility within a designated area may supersede or preempt any county or municipal land use, zoning, or building rules, regulations, or ordinances upon a finding by the Public Utilities Commission that such rules, or regulation, or ordinances, as applied to the proposed route, are unreasonably restrictive in view of existing technology, factors of cost, or economics, or needs of parties where located in or out of the county or municipality. Without such a finding by the commission, no route shall be designated which violates local land-use zoning, or building rules, or regulations, or ordinances.
Source: SL 1977, ch 390, § 31; SL 2024, ch 189, § 6, rejected Nov. 5, 2024.
49-41B-29. Transfer of permit--Commission approval--Rules.
A permit may be transferred, subject to the approval of the Public Utilities Commission to a person who agrees to comply with the terms, conditions, and modifications contained therein. The commission shall adopt rules pursuant to the authority granted under this chapter.
Source: SL 1977, ch 390, § 4.
49-41B-30. Circuit court review of commission decision by aggrieved party--Procedures.
Any party to a permit issuance proceeding aggrieved by the final decision of the Public Utilities Commission on an application for a permit, may obtain judicial review of that decision by filing a notice of appeal in circuit court. The review procedures shall be the same as that for contested cases under chapter 1-26.
Source: SL 1977, ch 390, § 22; SL 1982, ch 332, § 4.
49-41B-31. Order not stayed by appeal--Stay or suspension by court.
Notwithstanding the provisions of § 49-41B-30, the pendency of proceedings on appeal from a Public Utilities Commission order shall not of itself stay or suspend the operation of the order, but during the pendency of the proceedings the court may, upon motion by one of the parties, stay or suspend, in whole or in part, the operation of the commission's order on terms it deems just, and in accordance with the practice of courts exercising equity jurisdiction, but no stay shall be granted without notice to the parties and opportunity to be heard by the court. No commission order shall be stayed or suspended absent a finding that, great or irreparable damage would otherwise result to the party seeking the stay or suspension and any other staying or suspending a commission order shall specify the nature of the damage.
Source: SL 1977, ch 390, § 24.
49-41B-32. Surety bond required if order stayed or suspended--Other security.
If an order of the Public Utilities Commission is stayed or suspended the court shall require a bond with good and sufficient surety, conditioned that the party or parties petitioning for review shall answer for all damages caused by the delay in enforcing the order of the commission. The court may in addition or in lieu of the bond, require other further security for the payment of such excess damages or charges it deems proper.
Source: SL 1977, ch 390, § 25.
49-41B-33. Revocation or suspension of permit--Grounds.
A permit may be revoked or suspended by the Public Utilities Commission for:
(1) Any misstatement of a material fact in the application or in accompanying statements or studies required of the applicant, if a correct statement would have caused the commission to refuse to grant a permit; or
(2) Failure to comply with the terms or conditions of the permit; or
(3) Violation of any material provision of this chapter or the rules promulgated thereunder.
Source: SL 1977, ch 390, § 27.
49-41B-34. Violation of permit requirements as misdemeanor--Civil penalty--Continuing offense.
Any person required by this chapter to have a permit who begins construction of a facility without previously securing a permit as prescribed by this chapter, or who constructs, operates, or maintains a facility other than in compliance with the permit and any terms, conditions, and modifications contained therein is guilty of a Class 1 misdemeanor and is subject to a civil penalty of not more than ten thousand dollars. Each day of violation shall constitute a separate offense. The civil penalty provided for in this section shall be recoverable by suit filed by the Public Utilities Commission and shall be deposited into the permanent school fund.
Source: SL 1977, ch 390, § 32.
49-41B-35. Promulgation of rules.
To implement the provisions of this chapter regarding facilities, the commission shall promulgate rules pursuant to chapter 1-26. Rules may be adopted by the commission:
(1) To establish the information requirements and procedures that every utility must follow when filing plans with the commission regarding its proposed and existing facilities;
(2) To establish procedures for utilities to follow when filing an application for a permit to construct a facility, and the information required to be included in the application; and
(3) To require bonds, guarantees, insurance, or other requirements to provide funding for the decommissioning and removal of a solar or wind energy facility.
Source: SL 1977, ch 390, § 26; SL 1986, ch 22, § 24; SL 1990, ch 371, § 4; SL 2005, ch 250, § 4; SL 2007, ch 274, § 3; SL 2019, ch 200, § 2.
49-41B-36. Authority to route or locate facilities not delegated to commission.
Nothing in this chapter is a delegation to the commission of the authority to route a transmission facility, or to designate or mandate location of an energy conversion facility, AC/DC conversion facility, solar energy facility, or wind energy facility.
Source: SL 1977, ch 390, § 2; SL 2005, ch 250, § 5; SL 2006, ch 242, § 6; SL 2019, ch 200, § 3.
49-41B-37. Citation of chapter.
This chapter shall be known as the South Dakota Energy Facility Permit Act.
Source: SL 1977, ch 390, § 1.
49-41B-38. Indemnity bond for damage to roads and bridges.
In the case of any trans-state transmission facility or transmission facility as defined in this chapter, the Public Utilities Commission shall require any person performing any construction or survey work to furnish an indemnity bond in a reasonable amount, which shall be in lieu of any county or township indemnity bond pursuant to §§ 31-12-43 and 31-13-55. Such bond shall run in favor of, and for the benefit of, such townships, counties, or other governmental entities whose property is crossed by such trans-state transmission facility or transmission facility to insure that any damage beyond normal wear to public roads, highways, bridges, or other related facilities shall be adequately compensated. The form, terms, and conditions of such bond shall be subject to the approval of the Public Utilities Commission.
Source: SL 1984, ch 213, § 3.
49-41B-39. Financial security for decommissioning of wind turbines or solar facilities.
All right and title in any financial security required by the commission for the decommissioning of wind turbines or solar energy facilities must be controlled by the commission, in accordance with the terms of the financial security agreement or instrument, until the commission by order releases the security. The financial security of the person required to provide it may not be cancelled, assigned, revoked, disbursed, replaced, or allowed to terminate without commission approval.
The commission may require, accept, hold, or enter into any agreement or instrument for the provision of financial security, including any funds reserved or held by any person to satisfy or guarantee the obligation of an owner of wind turbines or solar energy facilities permitted under this chapter, to decommission and remove the wind turbines or solar energy facilities. The form, term, and conditions of the financial security are subject to the approval of the commission. The commission shall determine any claim upon the financial security made by any landowner for decommissioning and removal of turbines or solar energy facilities.
Any financial security provided under this chapter may not be pledged or used as security for any other obligation of the wind turbine or solar energy facilities owner, and is exempt from attachment or mesne process, from levy or sale on execution, and from any other final process issued from any court on behalf of third-party creditors of the owner of the wind turbines or solar energy facilities. Any commission decision based on any claim made by the owner of the wind turbines or solar energy facilities for refund or return of the financial security, or for actual expenses of decommissioning, or any related agreements, may be appealed.
In any case, the commission may appear in court and defend the integrity and viability of the financial security for purposes of decommissioning and removal of wind turbines or solar energy facilities. The commission may not require any financial security from an owner of wind turbines or solar energy facilities who is also a public utility as defined in § 49-34A-1.
Source: SL 2019, ch 202, § 1; SL 2022, ch 173, § 1.
49-42-1
Repealed.
49-42-1.1, 49-42-1.2. Repealed.
49-42-2
Repealed.
49-42-2.1
Repealed.
49-42-3 to 49-42-5. Repealed.
49-42-5.1, 49-42-6.
Repealed.
49-42-7
Repealed.
49-42-8
Repealed.
49-42-9 to 49-42-15. Repealed.
49-42-15.1, 49-42-15.2. Repealed.
49-42-16
Repealed.
49-42-17 to 49-42-26. Repealed.
49-42A-1
Public storage warehouse defined.
49-42A-2 to 49-42A-7. Repealed.
49-42A-8
All property to be insured by public storage warehouse--Exception--Violation as
misdemeanor.
49-42A-1. Public storage warehouse defined.
A public storage warehouse is a public warehouse where any personal property except grain, as defined in subdivision 49-45-1.1(2), is received for storage for hire and that generates more than five thousand dollars in gross income from storage for hire per calendar year. A public storage warehouse does not include self- storage units where the depositor's personal property is kept separate from the personal property of other depositors.
Source: SL 1985, ch 376, § 10; SL 1986, ch 397, § 1; SL 1996, ch 277, § 6; SL 2008, ch 248, § 1.
49-42A-8. All property to be insured by public storage warehouse--Exception--Violation as misdemeanor.
Unless other insurance coverage is agreed to in writing by the depositor, a public storage warehouse shall keep all personal property of depositors fully insured against loss by fire, windstorm, and extended coverage risks. Failure to keep insurance in place is a Class 1 misdemeanor.
Source: SL 2008, ch 248, § 2.
CHAPTER 49-43
PUBLIC GRAIN WAREHOUSES
49-43-1 Grain delivered to warehouse considered stored--Other arrangements--Settlement.
49-43-1.1 Definitions.
49-43-2 Delivery constitutes bailment rather than sale.
49-43-2.1 Receipt for stored grain required--Exceptions--Form--Violation as misdemeanor.
49-43-3 Grain stored under receipt not liable to seizure--Insolvency of bailee.
49-43-4 49-43-4. Repealed by SL 2008, ch 249, § 6.
49-43-4.1 Promulgation of rules.
49-43-4.2 Public grain warehouse license--Penalty--Injunction--Civil fine.
49-43-4.3 Bond requirement--Violation as misdemeanor.
49-43-4.4 Issuance or denial of license.
49-43-4.5 Expiration of license--Revocation or suspension.
49-43-5 49-43-5. Repealed by SL 1985, ch 376, § 81.
49-43-5.1 Application for license--Contents--Multiple warehouses of licensee.
49-43-5.2 Application fee.
49-43-5.3 Purpose of bond--Amount--Multiple warehouses.
49-43-5.4 49-43-5.4. Repealed by SL 1989, ch 404, § 3.
49-43-5.5 Filing of other financial documents in lieu of bond.
49-43-5.6 Grounds for suspension of license.
49-43-5.7 Recovery of damages for breach of obligation under bond--Notice to commission--Time for commission response.
49-43-5.8 Possession of warehouse by commission--Notification of surety.
49-43-5.9 Claim against warehouseman--Time limitation--Notice of revocation of license.
49-43-6 49-43-6. Repealed by SL 1985, ch 376, § 81.
49-43-7 Filing of rates charged by grain warehouse--Adjustment--Nondiscrimination.
49-43-8 49-43-8. Repealed by SL 1994, ch 359, § 5.
49-43-9 Monthly reports to commission--Form and contents--Public inspection--Violation as misdemeanor.
49-43-10 Yearly grain measurement--Additional reports--Violation as misdemeanor.
49-43-10.1 49-43-10.1. Repealed by SL 2017, ch 200, § 3.
49-43-11 Duty to receive grain--Exceptions--Violation as misdemeanor.
49-43-12 49-43-12. Repealed by SL 1985, ch 376, § 81.
49-43-13 Notice of market value of grain and accrued storage charges.
49-43-14 Issuance of new receipts--Cancellation of old receipts.
49-43-15 Conditions to issuance of receipt--Violation as misdemeanor.
49-43-16 49-43-16. Repealed by SL 1985, ch 376, § 81.
49-43-17 Modification of warehouseman's liability prohibited.
49-43-18 Cancellation of receipt upon delivery of grain--Double delivery prohibited.
49-43-19 Partial delivery of grain--Issuance of new receipt--Terms of new receipt.
49-43-20 Division or consolidation of receipts--Cancellation of original receipt--Terms of new receipt.
49-43-21 Warehouseman prohibited from denying title of receipt holder.
49-43-22 Duty to redeliver grain.
49-43-23 Redelivery of identical grain not required--Deduction for dockage and foreign material--Guaranty respecting weight, grade, and quality.
49-43-24 49-43-24. Repealed by SL 1994, ch 359, § 6.
49-43-25 Refusal to deliver grain as theft.
49-43-26 Certificates of weight and grade to be forwarded to warehouse and available for inspection--Violation as grounds for license revocation.
49-43-27 49-43-27, 49-43-28. Repealed by SL 2008, ch 249, §§ 22, 23.
49-43-29 49-43-29. Repealed by SL 1992, ch 277, § 9.
49-43-30 49-43-30. Repealed by SL 1983, ch 15, § 168.
49-43-32 Warehouseman agreeing to delivery contrary to owner's directions as misdemeanor.
49-43-33 Pooling agreements between competing warehousemen as misdemeanor.
49-43-34 49-43-34. Repealed by SL 2008, ch 251, § 24.
49-43-35 Grain bank accounts--Establishment and maintenance.
49-43-36 Open storage grain considered stored grain.
49-43-37 Insurance of grain against loss--Violation as misdemeanor.
49-43-38 Records to be kept in safe place--Inspection.
49-43-39 Notice of damage to or destruction of warehouse.
49-43-40 Inspection of grain warehouses--Subpoena power and examination of witnesses.
49-43-41 Provision of requested records--Civil fine.
49-43-42 Memorandum of adjustments.
49-43-43 Provisions regarding uniform warehouse receipts applicable.
49-43-44 Issuance of receipt for goods not actually received or under the warehouse's control as felony.
49-43-45 Issuance of receipt with false statement as misdemeanor.
49-43-46 Issuance of duplicate receipt not marked as duplicate prohibited--Exceptions--Violation as felony.
49-43-47 Receipt for goods owned by warehouse solely or with another to state ownership--Violation as misdemeanor.
49-43-48 Receipt to be obtained at or before delivery of goods from warehouse--Violation as misdemeanor.
49-43-49 Negotiation of receipt without disclosing lack of title or existence of lien as misdemeanor.
49-43-50 Appeal of commission decision.
49-43-51 Falsely weighing agricultural product as misdemeanor.
49-43-52 Grain and warehouse fund established.
49-43-53 Repealed.
49-43-54 Contract with independent provider to maintain electronic warehouse receipts.
49-43-55 Commission approval of independent provider--Revocation of approval.
49-43-56 Maintenance of secure electronic central filing system--Promulgation of rules.
49-43-57 Depositor right to paper warehouse receipt.
49-43-58 Commission access to central filing system--Memorandum of adjustments--Civil penalties.
49-43-59 Surrender of electronic warehouse receipt to commission--Grain receivership--Surety bond claim.
49-43-60 Independent provider to be authorized to transact business in South Dakota--Jurisdiction--Venue--Liability for costs.
49-43-61 Parent company furnishing financial statements responsible for financial obligations of licensed entity.
49-43-62 Grain warehouse operator's financial condition--Notice to commission--Penalty--Civil fine.
49-43-63 Owner, manager, or chief executive officer responsible for violation is subject to criminal penalty.
49-43-1. Grain delivered to warehouse considered stored--Other arrangements--Settlement.
Any grain delivered to a public grain warehouse shall be considered stored at the time of delivery unless an arrangement has been made with the public grain warehouse operator prior to or at the time of delivery to apply the grain on contract, for shipment or consignment, or for cash sale. Grain may be held in open storage, a grain bank account, or placed on a warehouse receipt. The warehouse shall issue a scale ticket for any grain received by the warehouse. The warehouse shall keep sufficient grain inventory to cover all stored grain. Settlement for all grain stored or sold shall be made immediately on demand by the owner.
Source: SDC 1939, § 60.0314; SL 1973, ch 287, § 1; SL 1985, ch 376, § 22; SL 2008, ch 249, § 1.
49-43-1.1. Definitions.
Terms used in this chapter mean:
(1) "Commission," the Public Utilities Commission of this state;
(2) "Grain bank," grain which is received by a public grain warehouse from depositors for storage and is to be withdrawn and processed into feed as needed;
(3) "Independent provider," a third party entity that maintains an electronic central filing system of electronic warehouse receipts;
(4) "Open storage grain," grain received by a public grain warehouse from a depositor for which a warehouse receipt has not been issued or a purchase made and is not grain bank;
(5) "Public grain warehouse," any public warehouse where grain, as defined in § 49-45-1.1, is received for storage for hire. A public grain warehouse may also purchase, receive or handle grain in accordance with the provisions of chapter 49-45 relating to grain buyers;
(6) "Receipt," a warehouse receipt which complies with the requirements of this chapter and the rules of the commission promulgated pursuant thereto. A warehouse receipt may be in an electronic form;
(7) "Scale ticket," a memorandum issued by a public grain warehouse or grain buyer to a depositor at the time grain is initially delivered, showing the weight of the load, kind of grain, date of delivery, and indicates whether the grain is to be sold or stored under a warehouse receipt, in open storage, or in a grain bank account.
Source: SL 1985, ch 376, § 17; SL 1986, ch 397, § 2; SL 1989, ch 404, § 1; SL 1994, ch 359, § 1; SL 2008, ch 249, § 2; SL 2011, ch 211, § 1; SL 2012, ch 232, § 1.
49-43-2. Delivery constitutes bailment rather than sale.
If any grain is delivered to any person doing a public grain warehouse business in this state and is held in open storage, in a grain bank account, or placed on a warehouse receipt, the delivery is a bailment and not a sale of the grain.
Source: SDC 1939, § 60.0315; SL 1985, ch 376, § 24; SL 2008, ch 249, § 3.
49-43-2.1. Receipt for stored grain required--Exceptions--Form--Violation as misdemeanor.
The operator of a public grain warehouse shall give a receipt for the grain received by it for storage, except for grain held in open storage or a grain bank account. No receipt form may be used except any form requested and ordered in accordance with the commission's rules promulgated pursuant to chapter 1-26.
The commission shall determine by rule or order the form and contents of any receipt form, which shall be uniform.
Any receipt form may be recovered by the commission if the public grain warehouse license is revoked, suspended, or otherwise terminated.
A violation of this section is a Class 1 misdemeanor.
Source: SL 1985, ch 376, § 23; SL 1986, ch 397, § 3; SL 2008, ch 249, § 4.
49-43-3. Grain stored under receipt not liable to seizure--Insolvency of bailee.
In no case is the grain stored under a receipt as required by § 49-43-2.1, open storage grain, or grain bank liable to seizure upon process of any court in any action against the bailee, except an action by the owner of open storage grain, owner of grain bank, or owner or holder of a warehouse receipt to enforce the terms of the same. In the event of the failure or insolvency of the bailee, grain on hand in the public grain warehouse shall first be applied to the redemption and satisfaction of outstanding receipts issued by the warehouse and to owners of open storage grain and grain bank.
Source: SDC 1939, § 60.0315; SL 1985, ch 376, § 25; SL 2008, ch 249, § 5.
49-43-4.1. Promulgation of rules.
The commission may promulgate rules pursuant to chapter 1-26 concerning:
(1) The procedure for filing grain reports;
(2) The form of a public grain warehouse's bond and application, and the information required to be included for licensing;
(3) Requirements and procedures for releasing bonds;
(4) Requirements for posting public grain warehouse's licenses;
(5) Procedures and requirements for license suspension, revocation, transfer of ownership, or insolvency by a public grain warehouse;
(6) Requirements for the form of, procedures for, and the issuance and control of grain warehouse receipts and scale tickets;
(7) Specifications for the safe storage of grain;
(8) Requirements for filing financial statements with the commission and the financial standards by which the statements are approved when considering whether to license a public grain warehouse; and
(9) The rates for receiving, handling, redelivering, and storing grain.
Source: SL 2008, ch 249, § 7.
49-43-4.2. Public grain warehouse license--Penalty--Injunction--Civil fine.
No owner, lessee, or manager of a public grain warehouse may transact business as a public grain warehouse until a license has been issued by the commission. Any person who violates this section is guilty of a Class 1 misdemeanor.
Each day that a person is in violation of this section is a separate offense.
The operation of a public grain warehouse, without a license, may be enjoined by the commission.
The commission may assess a civil fine against an unlicensed warehouse operator in the amount of five thousand dollars per day, up to a maximum of fifty thousand dollars.
Source: SL 2008, ch 249, § 8; SL 2022, ch 174, § 1.
49-43-4.3. Bond requirement--Violation as misdemeanor.
Before any license is granted to a public grain warehouse, the warehouse operator shall file with the commission a bond conditioned to secure the faithful performance of the warehouse operator's obligations as a public warehouse and full and unreserved compliance with the laws of this state and the rules of the commission, relating to the storage of property for hire by the public warehouse. The bond shall be in the amount specified by § 49-43-5.3. Operation as a public grain warehouse without a bond is a Class 1 misdemeanor. Each day a person conducts the business of a public grain warehouse without a bond is a separate offense.
Source: SL 2008, ch 249, § 9.
49-43-4.4. Issuance or denial of license.
Upon receipt of an application and sufficient bond, the commission may grant the license applied for or may, for good cause shown, deny the issuance of the license.
Source: SL 2008, ch 249, § 10.
49-43-4.5. Expiration of license--Revocation or suspension.
Each license issued pursuant § 49-43-4.4 expires on the next June thirtieth following the issuance of the license. The commission may at any time for good cause shown revoke or suspend any grain warehouse license. However, the grain warehouse operator has the right of appeal from the decision provided by chapter 1-26 for the review of final decisions of the commission.
Source: SL 2008, ch 249, § 12.
49-43-5.1. Application for license--Contents--Multiple warehouses of licensee.
The application for a license to operate as a public grain warehouse made pursuant to § 49-43-4.2 shall be in writing, in a form prescribed by the commission, and shall set forth the name, principal office or place of business, location of each warehouse if more than one warehouse is operated in separate municipalities or locations, and the individual name of each owner or principal in the management of the warehouse. If the warehouse is owned or managed by a corporation, the name of the president, secretary, and treasurer of the corporation shall be stated. The application shall also state that the applicant is seeking a public grain warehouse license and shall contain financial information depicting the financial condition of the business at the time of the application. The application shall contain the affirmation statement set forth in § 22-29-9.1. The application shall be signed by the owner, managing partner, or chief executive officer of the applicant and shall be notarized.
If a warehouseman has more than one public grain warehouse in the same municipality, only one license is required for all the public grain warehouses.
Source: SL 1985, ch 376, § 18; SL 1992, ch 60, § 2; SL 1994, ch 359, § 3; SL 2013, ch 238, § 1, eff. Apr. 1, 2013; SL 2017, ch 200, § 1.
49-43-5.2. Application fee.
The application for a license to operate as a public grain warehouse shall be accompanied by a fee of two hundred seventy-five dollars for each municipality or location at which the warehouse operator receives or stores grain for hire.
Source: SL 1985, ch 376, § 19; SL 1996, ch 277, § 3; SL 2008, ch 250, § 1; SL 2011, ch 211, § 2; SL 2013, ch 238, § 2, eff. Apr. 1, 2013.
49-43-5.3. Purpose of bond--Amount--Multiple warehouses.
The bond required by § 49-43-4.3 for public grain warehouses is for the specific purpose of protecting persons storing grain with the warehouse.
The warehouse operator shall furnish a single bond in an amount equal to one-half of the local market value of the grain stored in the warehouse, or if multiple warehouses are operated by the warehouse operator, the bond shall equal one-half of the local market value of the grain stored at all warehouse locations. However, a warehouse operator shall provide a minimum bond of twenty-five thousand dollars at any one municipality or location. The minimum bond amounts per municipality or location does not limit the bond coverage available to depositors at any one warehouse location. The entire bond, up to the amount on its face, shall provide coverage to a depositor conducting business at any of the warehouse operator's locations.
The bond shall describe with particularity the exact locations of the warehouses to be covered.
Source: SL 1985, ch 376, § 20; SL 1986, ch 397, § 4; SL 1987, ch 355, § 1; SL 1989, ch 404, § 2; SL 1992, ch 60, § 2; SL 1994, ch 359, § 4; SL 2008, ch 249, § 11.
49-43-5.5. Filing of other financial documents in lieu of bond.
If the Public Utilities Commission determines, because a corporate surety company becomes insolvent or ceases to write grain warehouse bonds in this state, that a bond in the sum required by § 49-43-5.3 cannot be executed, the commission may, by rule, authorize the filing of other financial documents in lieu of a corporate surety bond.
Source: SL 1987, ch 355, § 2.
49-43-5.6. Grounds for suspension of license.
The commission may immediately suspend the license of a warehouse operator and the warehouse operator shall surrender the license to the commission if:
(1) The warehouse operator, whether licensed or unlicensed, refuses, neglects, or is unable, upon proper demand, to redeem any warehouse receipt or scale ticket for grain in open storage or in grain bank issued by the warehouse operator, through redelivery or cash payment;
(2) The warehouse operator refuses, neglects, or is unable to provide a bond in an amount required by the commission;
(3) The commission has knowledge of any act of insolvency, including the filing of a petition in bankruptcy naming the warehouse as debtor; or
(4) The warehouse operator refuses to submit to an inspection or cooperate with the lawful requests of a commission inspector, including requests for access to and copies of the books and records of the warehouse.
Within fifteen days the warehouse operator may request a hearing pursuant to chapter 1-26 to determine if the license should be revoked. If no request is made within fifteen days, the commission shall revoke the license. If the commission determines it is necessary, the commission may apply to the circuit court in the county in which the warehouse operator operates for that court to appoint a receiver. The receiver has such powers and duties as the court may direct.
Source: SL 1987, ch 355, § 3; SL 2008, ch 249, § 13; SL 2013, ch 238, § 3, eff. Apr. 1, 2013.
49-43-5.7. Recovery of damages for breach of obligation under bond--Notice to commission--Time for commission response.
Any person injured by the breach of any obligation of a warehouseman, for the performance of which a bond has been given under any of the provisions of this chapter, may sue on the bond in the person's own name in any court of competent jurisdiction to recover any damages the person may have sustained by reason of the breach. However, a person may sue on the bond only if the person has notified the commission of the person's intent to sue on the bond and if the commission has stated in writing that it does not intend to institute any proceedings regarding the bond. The commission shall respond in writing within sixty days of notification stating whether the commission intends to institute any proceedings regarding the bond. If the commission fails to respond in writing within the sixty days, the person may proceed to sue on the bond in the person's own name.
Source: SL 1987, ch 355, § 4; SL 2011, ch 211, § 3; SL 2012, ch 232, § 9.
49-43-5.8. Possession of warehouse by commission--Notification of surety.
If the commission becomes aware of any act by any warehouse operator as described in § 49-43-5.6, the commission may:
(1) Take immediate possession of the warehouse facility, and undertake an immediate audit and verify the names and addresses of all outstanding warehouse receipt holders and scale ticket holders as revealed by the audit, and audit and certify the quantity and class or classes of grain therein;
(2) Immediately notify the surety named in both the warehouse's and grain buyer's bonds, if any, held by the warehouse.
Source: SL 1987, ch 355, § 4a; SL 2008, ch 249, § 14.
49-43-5.9. Claim against warehouseman--Time limitation--Notice of revocation of license.
Upon revocation, termination, or cancellation of a warehouse license, any claim against the warehouseman arising under this chapter shall be made in writing with the commission within six months after receiving notice of revocation, termination, or cancellation. Upon revocation of a warehouse license, the commission shall publish notice of the revocation once each week for two consecutive weeks in a newspaper of general circulation in each county in which the licensee maintains a business location and in a newspaper of general circulation within the state. The commission shall also send notice of the revocation by certified mail to each grain storage receipt and scale ticket holder named in the audit prepared pursuant to § 49-43-5.8. The notice shall state the name and address of the warehouseman, the effective date of revocation, and the name and address of the surety on the warehouse bond. The notice shall also state that any claims against the warehouseman shall be made in writing and sent by ordinary mail to the commission within six months after receiving notice of revocation.
Source: SL 1987, ch 355, § 5; SL 1989, ch 30, § 83; SL 1989, ch 404, § 4; SL 2017, ch 200, § 2.
49-43-7. Filing of rates charged by grain warehouse--Adjustment--Nondiscrimination.
At the time of licensing, a grain warehouse operator shall file with the commission the rates charged by the grain warehouse for storing, receiving, and redelivering grain. A grain warehouse operator may file different rates for different commodities and the rates shall be effective for the licensing period beginning on July first. A grain warehouse operator may adjust rates during the licensing period no more than four times and adjusted rates shall be effective on the date of filing. A grain warehouse shall charge each customer the rates on file with the commission without discrimination. However, a warehouse operator may waive the fees for receiving and handling if the operator takes title to the grain. A list of the rates shall be made available to a customer upon request.
Source: SDC 1939, § 60.0311; SL 1949, ch 433; SL 1985, ch 376, § 29; SL 1992, ch 332, § 1; SL 2009, ch 247, § 1.
49-43-9. Monthly reports to commission--Form and contents--Public inspection--Violation as misdemeanor.
The operator of each public grain warehouse shall, on or before the tenth day of each month and at such additional times as the commission requires, furnish the commission on forms prepared by the commission, reports showing the facts and information required by the commission. The reports are not for public inspection, but the commission may, upon request, furnish the total of the figures shown on the reports if the figures requested are for not less than four public grain warehouses. The commission may also require that a warehouse operator provide any other documents and information regarding the business of the warehouse. None of the documents and information obtained through the licensing and inspection processes are subject to public inspection. A violation of this section by an operator is a Class 1 misdemeanor.
Source: SDC 1939, § 60.0310; SL 1973, ch 287, § 2; SL 1974, ch 299; SL 1983, ch 15, § 161; SL 1985, ch 376, § 31; SL 1992, ch 332, § 3; SL 2008, ch 249, § 15; SL 2013, ch 238, § 4, eff. Apr. 1, 2013.
49-43-10. Yearly grain measurement--Additional reports--Violation as misdemeanor.
Each public grain warehouse shall obtain a yearly measurement of all the grain in its facility and shall provide the results of the measurement to the commission along with a daily position report as of the time of the measurement. The measurement shall be performed by a qualified person independent of the warehouse. If the commission finds the person performing the measurement is not qualified or independent, the commission may require a different person to perform the measurement.
The commission may also require the operator of a public grain warehouse to furnish under oath, a written report showing the condition and management of the business, the total number of bushels of each kind and grade of grain purchased and in store, the number delivered out, the number remaining in store at the date of the report, and any other information regarding the business of the public grain warehouse which the commission requires. A violation of this section is a Class 1 misdemeanor.
No warehouse need weigh the grain on hand more than once in each year, unless the commission requires an additional measurement as part of an investigation of the warehouse. If required by the commission, a warehouse shall measure its grain inventory at its expense. The commission shall designate a person who is qualified to perform the measurement, which may be an agent or employee of the warehouse or a third party as appropriate under the circumstances of the investigation.
Source: SDC 1939, § 60.0310; SL 1983, ch 15, § 162; SL 1985, ch 376, § 32; SL 1992, ch 332, § 4; SL 2008, ch 249, § 16.
49-43-11. Duty to receive grain--Exceptions--Violation as misdemeanor.
The lessee, owner, or manager of a public grain warehouse which has furnished a bond and received a public grain warehouse license, shall receive for storage all grain offered for storage at the warehouse, which at the time of the offer are in suitable condition for storage, and which are tendered in the usual course of business. However, a warehouse operator may refuse to store grain if the capacity of the warehouse is exhausted or for other good cause. If requested, a warehouse operator that refuses to store grain shall provide the person requesting storage with the reason for the refusal in writing. The written notice of refusal shall state that the person being refused storage may file a complaint with the commission contesting the refusal. A violation of this section is a Class 1 misdemeanor.
Source: SDC 1939, § 60.0316; SL 1983, ch 15, § 163; SL 1985, ch 376, § 33; SL 1986, ch 397, § 5; SL 2008, ch 249, § 17.
49-43-13. Notice of market value of grain and accrued storage charges.
By June thirtieth of each year, each warehouse operator shall provide written notice to each current depositor of all outstanding warehouse receipts, grain in open storage, and grain in a grain bank account. The notice shall state the market value of the grain and any accrued storage charges. Copies of the notices shall be kept and made available for inspection by the commission.
Source: SDC 1939, § 60.0316; SL 1973, ch 287, § 3; SL 1985, ch 376, § 34; SL 1986, ch 397, § 6; SL 2008, ch 249, § 18.
49-43-14. Issuance of new receipts--Cancellation of old receipts.
Upon the payment of all the accrued charges and the return of the storage receipt, a public warehouseman shall, if requested by the holder of an outstanding storage receipt, issue a new storage receipt to such holder and cancel the former receipt by endorsing thereon the words, "Canceled by the issuance of storage receipt No. ________," and inserting the number of the new storage receipt. The canceled storage receipt shall be signed by the warehouseman and the holder.
Source: SDC 1939, § 60.0316; SL 1985, ch 376, § 35.
49-43-15. Conditions to issuance of receipt--Violation as misdemeanor.
No warehouse receipt may be issued by a public grain warehouse except upon actual delivery of grain into the warehouse; nor may a receipt be issued for a greater quantity of grain than was actually received; nor may more than one receipt be issued for the same lot of grain, unless receipt for part of a lot is desired, and then the aggregate receipts for a particular lot shall cover that lot and no more. A violation of this section is a Class 1 misdemeanor.
Source: SDC 1939, § 60.0316; SL 1983, ch 15, § 165; SL 1985, ch 376, § 36; SL 2008, ch 249, § 19.
49-43-17. Modification of warehouseman's liability prohibited.
No public grain warehouseman may insert into any warehouse receipt issued by him any language modifying his liability as imposed by the laws of this state.
Source: SDC 1939, § 60.0316; SL 1985, ch 376, § 37.
49-43-18. Cancellation of receipt upon delivery of grain--Double delivery prohibited.
Upon the delivery of grain from storage upon any receipt issued by a public grain warehouse, such receipt shall be plainly marked across its face "canceled," and is thereafter void and may not again be put in circulation, nor may grain be delivered twice upon the same receipt.
Source: SDC 1939, § 60.0317; SL 1985, ch 376, § 38.
49-43-19. Partial delivery of grain--Issuance of new receipt--Terms of new receipt.
If a part of the grain represented by the receipt is delivered out of storage and the remainder is left, a new receipt may be issued for the remainder. The new receipt shall bear the same date as the original and shall state on its face that it is the balance of receipt of the original number, and the receipt upon which a part of the grain has been delivered shall be canceled in the same manner as if it had all been delivered.
Source: SDC 1939, § 60.0317; SL 1985, ch 376, § 39.
49-43-20. Division or consolidation of receipts--Cancellation of original receipt--Terms of new receipt.
If it is desirable to divide one receipt issued by a public grain warehouse into two or more, or if it is desirable to consolidate two or more receipts into one, and the warehouseman consents thereto, the original receipt shall be canceled the same as if the grain had been delivered from storage and the new receipts shall express on their face that they are a part of another receipt or a consolidation of other receipts, as the case may be. The numbers of the original receipt shall also appear upon the new ones issued as explanatory of the change. However, no consolidation of receipts of dates differing more than ten days may be permitted, and all new receipts issued for old ones canceled, as provided in this section, shall bear the same date as those originally issued.
Source: SDC 1939, § 60.0317; SL 1985, ch 376, § 40.
49-43-21. Warehouseman prohibited from denying title of receipt holder.
No person doing a grain warehouse business having issued a receipt for the storage of grain as in this chapter provided, may thereafter be permitted to deny that the grain represented by the receipt is the property of the person to whom such receipt was issued or his assigns. Such receipts shall be considered so far as the duties, liabilities, and obligations of such warehouseman are concerned, conclusive evidence of the fact that the person to whom the receipt was issued, or his assigns, is the owner of such grain and is the person entitled to make surrender of such receipt and receive the grain thereby promised to be delivered.
Source: SDC 1939, § 60.0318; SL 1985, ch 376, § 41.
49-43-22. Duty to redeliver grain.
Upon the return of any storage receipt by a receipt holder, a scale ticket for open storage grain, or a scale ticket for grain in a grain bank account, to the public grain warehouse issuing the receipt or scale ticket, and the tender of all proper charges on the grain represented by the receipt or scale ticket, the grain or an equal quantity of the same grade, kind and quality shall immediately be delivered to the holder of the receipt or scale ticket as rapidly as due diligence, care, and prudence justify.
Source: SDC 1939, § 60.0319; SL 1985, ch 376, § 42; SL 2008, ch 249, § 20.
49-43-23. Redelivery of identical grain not required--Deduction for dockage and foreign material--Guaranty respecting weight, grade, and quality.
Nothing in § 49-43-22 means the delivery of the identical grain specified in the receipt or scale ticket. A warehouse may instead deliver an equal amount of the same grade, kind and quality. If the grain delivered has not been cleaned by the warehouse, there shall be added to the amount delivered the amount originally deducted from the grain stored for dockage and foreign material. If the grain is to be delivered from some terminal market point, the public grain warehouse issuing the storage receipts or scale tickets shall guarantee weight, grade, and quality.
Source: SDC 1939, § 60.0319; SL 1985, ch 376, § 43; SL 2008, ch 249, § 21.
49-43-25. Refusal to deliver grain as theft.
Any public grain warehouseman who, after demand, tender and offer as provided in § 49-43-22, willfully fails to deliver, as provided by § 49-43-22, to the person making such demand, the full amount of grain of the kind and grade or market value thereof which such person may demand of such warehouseman, is guilty of theft.
Source: SDC 1939, § 60.9907; SL 1981, ch 177, § 17; SL 1985, ch 376, § 45.
49-43-26. Certificates of weight and grade to be forwarded to warehouse and available for inspection--Violation as grounds for license revocation.
Any person transacting the business of a public grain warehouseman, from whose public grain warehouse grain is shipped to any terminal point at which such grain is weighed, inspected, and graded by the officer of the state wherein such terminal point is situated, and certificates of such weighing, inspection, and grading are issued by such officer, shall immediately secure from such officer, either through the consignee of such grain or otherwise, such certificates or true and correct copies thereof. Such certificates or copies shall, within ten days after issuance be transmitted and delivered to the person having immediate charge of the public grain warehouse from which such grain was shipped, and shall be open to the inspection and examination of any person who has an ownership interest in such shipment. The commission may revoke the license of any public warehouseman found, upon hearing before it, to have violated such provisions.
Source: SDC 1939, §§ 60.0320, 60.9908; SL 1983, ch 15, § 166; SL 1983, ch 331, § 15; SL 1985, ch 376, § 46.
49-43-32. Warehouseman agreeing to delivery contrary to owner's directions as misdemeanor.
It is a Class 2 misdemeanor for any proprietor, lessee, or manager of a public grain warehouse to enter into a contract, agreement, understanding, or combination with a railroad company, corporation, or individual by which the property of any person is to be delivered to a public grain warehouse for storage or any other purpose contrary to the direction of the owner or his agent or consignee.
Source: SDC 1939, § 60.0313; SL 1983, ch 15, § 169.
49-43-33. Pooling agreements between competing warehousemen as misdemeanor.
It is a Class 2 misdemeanor for a warehouseman, company, or corporation engaged in the purchase and storage of grain subject to this chapter, to enter into a contract, agreement, or combination with any other warehousemen, company, or corporation for pooling in the purchase and storage of grain by different and competing warehousemen, companies, or corporations and to divide between them the aggregate or net proceeds of margins or profits resulting from their business as warehousemen, or any portion thereof. Each day of the contractual continuance is a separate offense.
Source: SDC 1939, § 60.0324; SL 1983, ch 15, § 170; SL 1985, ch 376, § 49.
49-43-35. Grain bank accounts--Establishment and maintenance.
Any grain delivered by a depositor to a public grain warehouse for a grain bank account shall be considered stored grain and is covered by the warehouse bond required pursuant to § 49-43-5.3. Notwithstanding § 49-43-2.1, a negotiable warehouse receipt need not be given to a depositor for any grain delivered for a grain bank account. However, the public grain warehouseman shall establish and maintain all grain bank accounts in a separate ledger which shall show the dates any grain was received from or redelivered to the depositor and the amount and quality of the grain which was received or redelivered. Any grain delivered into a grain bank account shall be a bailment and title to the grain shall remain with the depositor. The warehouseman shall keep sufficient grain inventory to cover all grain bank obligations. The grain bank ledger shall be kept current and show the latest activity date. Any storage, receiving, handling or redelivery charges adopted by the commission pursuant to § 49-43-7 do not apply to grain banks. However, the public grain warehouseman and depositor may agree on a service fee by contract for the storage of grain in a grain bank account. If the last grain in a grain bank account is redelivered to the depositor, or as agreed by contract between the parties, the public grain warehousemen shall give the depositor a settlement sheet showing the dates, amount and quality of grain received, redelivered, and the amount of any service fees.
Source: SL 1994, ch 359, § 2.
49-43-36. Open storage grain considered stored grain.
Open storage grain is considered stored grain and is covered by the warehouse bond required pursuant to § 49-43-5.3.
Source: SL 2008, ch 249, § 24.
49-43-37. Insurance of grain against loss--Violation as misdemeanor.
A public grain warehouse shall keep all grain in the warehouse insured at current market value against loss by fire, windstorm, and extended coverage risks. The warehouse operator shall furnish the commission with proof of the insurance when the operator applies for a license. A violation of this section is a Class 1 misdemeanor.
Source: SL 2008, ch 249, § 25.
49-43-38. Records to be kept in safe place--Inspection.
A public grain warehouse shall keep all records of grain purchased and stored and all receipts, scale tickets, and contracts issued and canceled in a safe place. The records shall be kept current and open for inspection by the commission. Each record shall be retained for a period of six years.
Source: SL 2008, ch 249, § 26.
49-43-39. Notice of damage to or destruction of warehouse.
The operator of a public grain warehouse shall notify the commission, within twenty-four hours, if the public grain warehouse is destroyed or substantially damaged.
Source: SL 2008, ch 249, § 27.
49-43-40. Inspection of grain warehouses--Subpoena power and examination of witnesses.
The commission shall cause every public grain warehouse, whether licensed or unlicensed, to be inspected at such times as the commission considers necessary. The inspector shall report in writing to the commission the result of the inspection. The inspector may, at any time during business hours, enter any public grain warehouse or any structure, vehicle, or enclosure in which the books and accounts of any public grain warehouse are kept, and may examine all the books, accounts, and electronic records relating to the transaction of business in such public grain warehouse either within or without the state. The commission may in all matters arising under this chapter exercise the power of subpoena and examine witnesses in accordance with chapter 1-26.
Source: SL 2008, ch 249, § 28; SL 2011, ch 211, § 4.
49-43-41. Provision of requested records--Civil fine.
Any public grain warehouse operator, owner, manager, or chief executive officer of a grain warehouse, or any other person in a managerial position in the state who refuses access to the warehouse's books and accounts or hinders and delays the commission or any of its employees or agents in examining the books and accounts, may be assessed a civil fine not exceeding twenty thousand dollars.
Source: SL 2008, ch 249, § 29; SL 2013, ch 238, § 5, eff. Apr. 1, 2013; SL 2022, ch 174, § 2.
49-43-42. Memorandum of adjustments.
Upon completing an inspection an inspector may issue a memorandum of adjustments. The commission may assess a civil fine in the amount of two hundred dollars for failure to comply with the memorandum of adjustments within thirty days. After thirty days, each day that the memorandum goes uncorrected may be considered a separate offense.
Source: SL 2008, ch 249, § 30.
49-43-43. Provisions regarding uniform warehouse receipts applicable.
Unless otherwise specifically provided by this chapter, the provisions regarding uniform warehouse receipts in chapter 57A-7 apply to the receipts and contracts of public grain warehouses operating within this state.
Source: SL 2008, ch 249, § 31.
49-43-44. Issuance of receipt for goods not actually received or under the warehouse's control as felony.
Any public grain warehouse operator, or any officer, agent, or employee, who issues a receipt knowing that the goods for which the receipt is issued have not been actually received by the warehouse, or are not under the warehouse's actual control at the time of issuing the receipt, is guilty of a Class 5 felony.
Source: SL 2008, ch 249, § 32.
49-43-45. Issuance of receipt with false statement as misdemeanor.
Any grain warehouse operator, or any officer, agent, or employee who fraudulently issues a receipt for goods knowing that it contains any false statement, is guilty of a Class 1 misdemeanor.
Source: SL 2008, ch 249, § 33.
49-43-46. Issuance of duplicate receipt not marked as duplicate prohibited--Exceptions--Violation as felony.
Any grain warehouse operator, or any officer, agent or employee, who issues a duplicate or additional negotiable receipt for goods knowing that a former negotiable receipt for the same goods or any part of them is outstanding and uncanceled, without plainly placing upon the face thereof the word, duplicate, except in the case of a lost or destroyed receipt after proceedings as provided for in subdivision 57A-7-601(1), is guilty of a Class 5 felony.
Source: SL 2008, ch 249, § 34.
49-43-47. Receipt for goods owned by warehouse solely or with another to state ownership--Violation as misdemeanor.
If there are deposited with or held by a warehouse goods of which the warehouse is owner, either solely or jointly or in common with others, the warehouse operator, or any officer, agent, or employee, who, knowing this ownership, issues or aids in issuing a negotiable receipt for such goods which does not state the ownership, is guilty of a Class 1 misdemeanor.
Source: SL 2008, ch 249, § 35.
49-43-48. Receipt to be obtained at or before delivery of goods from warehouse--Violation as misdemeanor.
Any grain warehouse operator, or any officer, agent, or employee, who delivers goods out of the possession of the grain warehouse, knowing that a negotiable receipt, the negotiation of which would transfer the right to the possession of such goods, is outstanding and uncanceled, without obtaining the possession of the receipt at or before the time of the delivery, except in the cases provided for in subdivisions 57A-7-206(1) to (3), inclusive, subdivisions 57A-7-210(1) and (2), and subdivision 57A-7-601(1), is guilty of a Class 1 misdemeanor.
Source: SL 2008, ch 249, § 36.
49-43-49. Negotiation of receipt without disclosing lack of title or existence of lien as misdemeanor.
Any person who deposits goods to which the person does not have title, or upon which there is a lien or mortgage, and who takes for the goods a negotiable receipt which the person afterwards negotiates for value with intent to deceive and without disclosing the person's lack of title or the existence of the lien or mortgage is guilty of a Class 1 misdemeanor.
Source: SL 2008, ch 249, § 37.
49-43-50. Appeal of commission decision.
An aggrieved party may appeal any decision of the commission made in the course of administration of this chapter in accordance with chapter 1-26.
Source: SL 2008, ch 249, § 38.
49-43-51. Falsely weighing agricultural product as misdemeanor.
It is a Class 1 misdemeanor for any person to falsely weigh any grain or any other agricultural product.
Source: SL 2008, ch 249, § 39.
49-43-52. Grain and warehouse fund established.
Any money collected by the commission pursuant to chapters 49-43 and 49-45 shall be paid into the state treasury and credited to the grain and warehouse fund which is hereby established in the state treasury. Any money credited in the fund and any interest earned on the fund are continuously appropriated to the commission for the implementation of the provisions of chapters 49-43 and 49-45.
Source: SL 2008, ch 249, § 40.
49-43-54. Contract with independent provider to maintain electronic warehouse receipts.
A warehouse operator may contract with an independent provider to maintain electronic warehouse receipts for grain. A warehouse operator shall issue electronic warehouse receipts through only one independent provider. Prior to engaging in the issuance of electronic warehouse receipts, a warehouse operator shall enter into a user agreement with an independent provider approved by the commission. All electronic warehouse receipts issued by the warehouse operator shall be filed in the independent provider's electronic central filing system.
Source: SL 2012, ch 232, § 2.
49-43-55. Commission approval of independent provider--Revocation of approval.
The independent provider shall be approved by the commission prior to operating in the state. The commission may approve an independent provider if the commission finds the independent provider is able to maintain a secure electronic central filing system of electronic records including warehouse receipts, is independent of outside influence or bias in action or appearance, and has entered into a provider agreement with the commission. Approval may be revoked by the commission if the independent provider fails to comply with the provisions of this chapter or the provider agreement.
Source: SL 2012, ch 232, § 3.
49-43-56. Maintenance of secure electronic central filing system--Promulgation of rules.
An independent provider shall file and maintain electronic warehouse receipts only on behalf of licensed warehouse operators who contract with the independent provider for those services. An independent provider shall maintain a secure electronic central filing system of electronic records including warehouse receipts and shall be independent of outside influence or bias in action or appearance. The provisions for issuance and cancellation of warehouse receipts found in this chapter apply to electronic warehouse receipts except to the extent the provisions are only applicable to paper receipts. The commission may promulgate rules in accordance with chapter 1-26 regarding the provisioning of a secure electronic central filing system of electronic documents by an independent provider, the approval or disapproval of the ability of an independent operator to operate in the state, and the issuance and cancellation of electronic warehouse receipts by an independent provider that operates in this state.
Source: SL 2012, ch 232, § 4.
49-43-57. Depositor right to paper warehouse receipt.
No warehouse operator may require a depositor to accept an electronic warehouse receipt in lieu of a paper warehouse receipt.
Source: SL 2012, ch 232, § 5.
49-43-58. Commission access to central filing system--Memorandum of adjustments--Civil penalties.
An independent provider shall allow the commission unrestricted access to the central filing system for electronic warehouse receipts maintained on behalf of warehouse operators licensed by the commission. The electronic warehouse receipt data shall be maintained for six years after cancellation of the receipts. Access shall be made available in a manner that allows interaction with commission warehouse examinations. Access shall be free of any charge or costs to the commission. The commission may exercise the power of subpoena and examine witnesses in accordance with chapter 1-26. An independent provider that refuses access to the independent provider's central filing system or hinders and delays the commission or any of its employees or agents in examining the books and accounts may be punished by a civil fine not to exceed two thousand dollars. In addition, the commission may revoke the ability of the independent provider to issue electronic warehouse receipts.
Upon completing an inspection, an inspector may issue a memorandum of adjustments. The commission may assess a civil fine in the amount of two hundred dollars a day for failure to comply with the memorandum of adjustments within thirty days. After thirty days, each day that the memorandum goes uncorrected may be considered a separate offense.
Source: SL 2012, ch 232, § 6.
49-43-59. Surrender of electronic warehouse receipt to commission--Grain receivership--Surety bond claim.
An independent provider shall allow for the commission to be a sole or joint holder of an electronic warehouse receipt if the issuing warehouse operator's license has been revoked and at least one of the following applies:
(1) The electronic warehouse receipt has been surrendered to the commission by a claimant for the proceeds of a grain receivership pursuant to this chapter; or
(2) The electronic warehouse receipt has been surrendered to the commission by a claimant for payment of a surety bond claim pursuant to this chapter.
If an electronic receipt holder files a claim against a grain receivership or against the surety bond, the commission shall obtain the consent and instruction of the holder to change the holder information on the independent provider's central filing system. The independent provider shall take any action ordered by the commission in regard to an electronic warehouse receipt involved with a grain receivership or a surety bond claim. The commission shall provide documentary evidence of the claim and any resulting required action to the independent provider.
Source: SL 2012, ch 232, § 7.
49-43-60. Independent provider to be authorized to transact business in South Dakota--Jurisdiction--Venue--Liability for costs.
Prior to being approved as an independent provider by the commission, an independent provider shall be authorized to transact business in the State of South Dakota and shall consent to jurisdiction in the State of South Dakota and venue in Hughes County, South Dakota. An independent provider is liable to the commission for costs incurred by the commission as a result of action taken in the event of a failure of the central filing system or any inability to provide the access required in § 49-43-58.
Source: SL 2012, ch 232, § 8.
49-43-61. Parent company furnishing financial statements responsible for financial obligations of licensed entity.
If an applicant for a warehouse license that is a subsidiary of a parent company submits the financial statements of the parent company, the parent company furnishing the financial statements is responsible for all the financial obligations incurred by the licensed entity related to the purchase and storage of grain, including any voluntary credit sale contract.
Source: SL 2013, ch 238, § 6, eff. Apr. 1, 2013; SL 2015, ch 236, § 3.
49-43-62. Grain warehouse operator's financial condition--Notice to commission--Penalty--Civil fine.
If during the licensing period a grain warehouse operator becomes aware that the grain warehouse is not in compliance with each financial standard, as set forth in the commission's rules, the grain warehouse operator shall immediately notify the commission of the grain warehouse's financial condition. When notification occurs, the commission shall immediately conduct an examination to determine if any grounds for suspension pursuant to § 49-43-5.6 have occurred.
A willful violation of this section that results in a financial loss to a grain depositor is punishable as theft under chapter 22-30A.
A willful violation that does not result in a financial loss to a grain depositor is a Class 1 misdemeanor.
The commission may assess a grain warehouse that is out of compliance a civil fine in an amount not to exceed five thousand dollars for each day the grain warehouse has been out of compliance, up to a maximum of fifty thousand dollars.
Source: SL 2013, ch 238, § 7, eff. Apr. 1, 2013; SL 2022, ch 174, § 3; SL 2022, ch 177, § 2.
49-43-63. Owner, manager, or chief executive officer responsible for violation is subject to criminal penalty.
The owner, manager, or chief executive officer of a grain warehouse, or any other person in a managerial position, who is responsible for any violation of this chapter by a grain warehouse is subject to any criminal penalty that applies to a grain warehouse under the provisions of this chapter.
Source: SL 2013, ch 238, § 8, eff. Apr. 1, 2013.
49-44-1
Repealed.
49-44-1.1
Repealed.
49-44-2
Repealed.
49-44-2.1
Repealed.
49-44-3 to 49-44-4. Repealed.
49-44-5
Repealed.
49-44-6 to 49-44-17. Repealed.
49-44-18
Repealed.
49-44-19
Repealed.
49-44-20
Repealed.
CHAPTER 49-45
GRAIN BUYERS
49-45-1 Grain buyer's license--Penalty--Civil fine.
49-45-1.1 Definitions.
49-45-2 49-45-2. Repealed by SL 1985, ch 376, § 81.
49-45-3 Expiration, revocation, and suspension of license--Appeal.
49-45-4 49-45-4, 49-45-5. Repealed by SL 1985, ch 376, § 81.
49-45-6 Supervision of grain buyers--Promulgation of rules.
49-45-7 Application for license--Contents--Issuance or denial--Multiple warehouses of licensee.
49-45-7.1 Classes of grain buyer's license.
49-45-8 Fee for license application--Waiver.
49-45-9 Bond requirements--Amount--Violation as misdemeanor.
49-45-9.1 Filing of financial documents in lieu of bond.
49-45-10 Payment for grain by buyer.
49-45-10.1 Uniform scale tickets or receipts.
49-45-11 Voluntary credit sales.
49-45-12 49-45-12. Repealed by SL 2013, ch 238, § 14, eff. April 1, 2013.
49-45-13 Inspection of buyers' facilities--Examination of books--Subpoena power.
49-45-13.1 Memorandum of adjustments--Civil fine for failure to comply.
49-45-14 Reports by buyers--Public inspection not permitted--Violation as misdemeanor.
49-45-15 49-45-15. Repealed by SL 2009, ch 248, § 3.
49-45-16 Grounds for suspension of grain buyer's license--Hearing--Revocation.
49-45-16.1 Receiver--Powers and duties.
49-45-17 Recovery of damages for breach of obligation under bond--Notice to commission--Time for commission response.
49-45-18 Audit of scale tickets--Certification of quantity and class of grain.
49-45-19 Grain buyer license—Revocation—Filing of claims.
49-45-20 49-45-20. Repealed by SL 2008, ch 251, § 19.
49-45-21 Commission authorized to contract for inspection of grain buyers' assessment and checkoff records.
49-45-22 Class A license requirements--Violation as misdemeanor.
49-45-23 Records of grain purchased and contracts.
49-45-24 Notice of destruction of or damage to facility.
49-45-25 Grain buyer's financial condition--Notice to commission--Penalty--Civil fine.
49-45-26 Provision of requested records--Penalty--Civil fine.
49-45-27 Owner, manager, or chief executive officer responsible for violation is subject to criminal penalty.
49-45-28 Parent company furnishing financial statements responsible for financial obligations of licensed entity.
49-45-29 Grain broker--Prohibited activities--Penalty--Civil fine.
49-45-1. Grain buyer's license--Penalty--Civil fine.
Before transacting the business of a grain buyer in this state, a person shall obtain a grain buyer license from the commission.
A violation of this section is a Class 5 felony if the person holds himself or herself out to be a grain broker and a Class 1 misdemeanor in all other cases. Each purchase of grain without a license is a separate offense.
A grain buyer transacting business without a license may be enjoined upon complaint of the commission.
The commission may assess a civil fine against an unlicensed grain buyer in the amount of five thousand dollars for each purchase of grain, up to a maximum fine of fifty thousand dollars per licensing period, as set forth in § 49-45-3.
For purposes of this section, the term, purchase of grain, means a transaction evidenced by the issuance of a uniform scale ticket or receipt, as described in § 49-45-10.1.
Source: SL 1949, ch 434, § 1; SL 1957, ch 488; SDC Supp 1960, § 60.0335; SL 1983, ch 15, § 174; SL 1985, ch 376, § 71; SL 1992, ch 332, § 5; SL 2008, ch 251, § 1; SL 2022, ch 174, § 4; SL 2022, ch 175, § 1.
49-45-1.1. Definitions.
Terms used in this chapter mean:
(1) "Business of a grain buyer," contracting to purchase grain or purchasing grain, regardless of:
(a) Where the grain is to be delivered; or
(b) Where title to the grain transfers;
(2) "Commission," the Public Utilities Commission;
(3) "Contract," except as referenced in § 49-45-21, a written or oral agreement to purchase grain, regardless of the:
(a) Timeline;
(b) Pricing structure; and
(c) Place of delivery;
(4) "Grain," grain, grain sorghums, beans, pulse crops, and oil seeds but not:
(a) Grain that has been cleaned, processed, and identified for an intended use of planting for reproduction;
(b) Grain that is received for consignment and which will be processed by the consignee for an intended use of planting for reproduction; or
(c) Grain purchased to feed livestock;
(5) "Grain broker," a person who is involved in the negotiation of a grain transaction in this state and:
(a) Is compensated for that involvement by at least one party to the transaction; and
(b) Does not take title to the grain that is subject to the transaction;
(6) "Grain buyer," any person who:
(a) Contracts to take title to grain;
(b) Purchases unprocessed grain for the purpose of reselling the grain; or
(c) Contracts to purchase at least three hundred thousand dollars' worth of unprocessed grain directly from producers in a license year, which begins on July first and ends on June thirtieth. Nothing in this chapter applies to the isolated resale of grain by a producer who does not hold himself or herself out as engaging in the business of reselling grain;
(7) "Holds himself or herself out," the creation of an assumption or the use of any kind of title, sign, symbol, document, or term indicating or conveying the idea that the person whose name is so connected is competent, qualified, authorized, or entitled to engage in certain activities;
(8) "Person," any natural person, firm, corporation, company, limited liability company, partnership, association, or joint stock company, or the lessee, trustee, or receiver appointed by any court for any one of the foregoing;
(9) "Producer," a person engaged in the business of grain production;
(10) "Unprocessed grain," grain that has not been materially altered, or otherwise combined with other grains or products to render the grain only a component part of a different product, provided the cleaning or screening of grain does not constitute processing; and
(11) "Voluntary credit sale," a sale of grain pursuant to which the sale price is to be paid more than thirty days after the delivery or release of the grain for sale, including those contracts commonly referred to as deferred-payment contracts, deferred-pricing contracts, and price-later contracts.
Source: SL 1985, ch 376, § 69; SL 1986, ch 397, § 9; SL 1994, ch 351, § 141; SL 2002, ch 216, § 1; SL 2008, ch 251, § 2; SL 2009, ch 248, § 1; SL 2013, ch 238, § 9, eff. Apr. 1, 2013; SL 2017, ch 200, § 4; SL 2022, ch 175, § 2; SL 2024, ch 192, § 1; SL 2024, ch 193, § 1.
49-45-3. Expiration, revocation, and suspension of license--Appeal.
Each license issued pursuant to § 49-45-1 expires on the next June thirtieth following the issuance of the license. The commission may at any time for cause shown revoke or suspend any grain buyer license. However, the grain buyer has the right of appeal from such decisions as provided by chapter 1-26 for the review of final decisions of the commission.
Source: SL 1949, ch 434, § 1; SL 1957, ch 488; SDC Supp 1960, § 60.0335; SL 1974, ch 300; SL 1985, ch 376, § 74; SL 2008, ch 251, § 3.
49-45-6. Supervision of grain buyers--Promulgation of rules.
The commission shall supervise the business of grain buyers in this state and administer the laws in relation thereto. The commission may promulgate rules, pursuant to chapter 1-26, concerning:
(1) The form of a grain buyer's bond and application and the information required to be included for licensing;
(2) Requirements for posting grain buyer's licenses;
(3) Notice requirements to sellers who enter into voluntary credit sale agreements;
(4) Requirements for filing financial statements with the commission and the financial standards by which the statements are approved when considering whether to license a grain buyer;
(5) Requirements for grain buyers to provide information to sellers regarding the statutes and rules relating to grain buyers;
(6) Requirements and procedures for releasing bonds; and
(7) Procedures and requirements for license suspension, revocation, transfer of ownership, or insolvency by a grain buyer.
Source: SL 1985, ch 376, § 70; SL 1986, ch 22, § 26; SL 1990, ch 371, § 7; SL 1992, ch 332, § 6; SL 2008, ch 251, § 4; SL 2011, ch 211, § 6; SL 2020, ch 202, § 1.
49-45-7. Application for license--Contents--Issuance or denial--Multiple warehouses of licensee.
An application for a grain buyer license shall be filed with the commission and shall be in a form prescribed by the commission. The application shall set forth the name of each owner or principal in the management of the business and shall contain financial information depicting the financial condition of the business at the time of application. If the applicant is a corporation, the application shall include the name of the president, secretary, and treasurer of the corporation. The application shall also include the location of the principal office or place of business and any additional place of business of the applicant. The application shall contain the affirmation statement set forth in § 22-29-9.1. The application shall be signed by the owner, managing partner, or chief executive officer of the applicant and shall be notarized.
Upon receipt of an application and sufficient bond as required by § 49-45-9, the commission may grant the license applied for or may, for good cause shown and after notice and an opportunity for hearing, deny the issuance of the license.
If a grain buyer has more than one grain buying facility in the same municipality, only one license is required for all the grain buying facilities.
Source: SL 1985, ch 376, § 72; SL 1994, ch 359, § 7; SL 2008, ch 251, § 5; SL 2013, ch 238, § 10, eff. Apr. 1, 2013; SL 2017, ch 200, § 5.
49-45-7.1. Classes of grain buyer's license.
An applicant may apply for a Class A grain buyer's license or a Class B grain buyer's license. No grain buyer with a Class B grain buyer's license may purchase grain in excess of five million dollars for the annual licensed year or enter into voluntary credit sale contracts. The commission shall require an applicant for a Class A grain buyer's license to submit a more detailed review of its financial condition than an applicant for a Class B grain buyer's license.
Source: SL 2008, ch 251, § 6; SL 2018, ch 268, § 1; SL 2024, ch 192, § 2.
49-45-8. Fee for license application--Waiver.
The application for a grain buyer license shall be accompanied by a fee of two hundred seventy-five dollars for each municipality or location at which the grain buyer receives grain. If the grain buyer making application for a license also holds a license to operate a public grain warehouse or is, at the same time, making application to operate a public grain warehouse under chapter 49-43, the fee imposed by this section is waived.
Source: SL 1985, ch 376, § 73; SL 1996, ch 277, § 4; SL 2008, ch 250, § 2; SL 2011, ch 211, § 7; SL 2013, ch 238, § 11, eff. Apr. 1, 2013.
49-45-9. Bond requirements--Amount--Violation as misdemeanor.
Before any grain buyer license is issued by the commission, the applicant must file with the commission a bond conditioned to secure the faithful performance of the applicant's obligations as a grain buyer and the applicant's full and unreserved compliance with the laws of this state and the rules of the commission, relating to the purchase of grain by the grain buyer. The bond is for the specific purpose of protecting persons selling grain to the grain buyer. However, the bond may not benefit any person entering into a voluntary credit sale with a grain buyer. Any person who does business as a grain buyer without a bond is guilty of a Class 1 misdemeanor. Each day a person conducts the business of a grain buyer without a bond is a separate offense.
The amount of the bond for a Class A or Class B grain buyer's license must be based on a rolling average of the dollar amount of grain purchased by the applicant in this state during the last three license years. For a new grain buyer, the first year's bond must be based on projected purchases. For a grain buyer with less than three years of experience as a grain buyer, the bond must be based on the average actual purchases made by the grain buyer in all of its previous years as a grain buyer or projected purchases, whichever amount is higher. The bond applies to all grain purchases for all of the grain buyer's business locations.
The amount of the bond for a Class A grain buyer's license is:
Dollar Amount of Grain Purchased | Bond Requirement |
Less than $2,000,001 | $50,000 |
$2,000,001--$5,000,000 | $100,000 |
$5,000,001-$10,000,000 | $150,000 |
$10,000,001-$20,000,000 | $200,000 |
$20,000,001-$30,000,000 | $250,000 |
$30,000,001-$40,000,000 | $300,000 |
$40,000,001-$55,000,000 | $350,000 |
$55,000,001-$70,000,000 | $400,000 |
$70,000,001-$85,000,000 | $450,000 |
$85,000,001-$100,000,000 | $500,000 |
Bond requirements are increased twenty-five thousand dollars for each additional ten million dollars in purchases above one hundred million dollars.
The amount of the bond for a Class B grain buyer's license is:
Dollar Amount of Grain Purchased | Bond Requirement |
Less than $2,000,001 | $50,000 |
$2,000,001--$5,000,000 | $100,000 |
The grain buyer may stipulate to a higher bond amount requested by the commission or may post additional security in another form.
Source: SL 1985, ch 376, § 75; SL 1994, ch 359, § 8; SL 1996, ch 277, § 1; SL 2008, ch 251, § 7; SL 2009, ch 248, § 2; SL 2013, ch 238, § 12, eff. Apr. 1, 2013; SL 2018, ch 268, § 2; SL 2024, ch 192, § 3.
49-45-9.1. Filing of financial documents in lieu of bond.
If the commission determines, because a corporate surety company becomes insolvent or ceases to write grain buyer bonds in this state, that a bond in the sum required by § 49-45-9 cannot be executed, or if a grain buyer is in the process of chapter 11 reorganization and a bond cannot be obtained, the commission may authorize the filing of other financial documents in lieu of a corporate surety bond.
Source: SL 2008, ch 251, § 8; SL 2009, ch 249, § 1, eff. Mar. 11, 2009.
49-45-10. Payment for grain by buyer.
A grain buyer must pay the purchase price to the owner or the owner's agent for grain upon delivery or demand of the owner or agent unless payment is to be made in accordance with the terms of a voluntary credit sale that complies with the requirements of this chapter and rules promulgated thereto. Full payment of any cash purchase must be made by the Class A grain buyer within thirty days of final delivery. A Class B grain buyer must pay for the grain included on a uniform scale ticket or comparable receipt, as defined in § 49-45-10.1, within thirty days of issuance.
Source: SL 1985, ch 376, § 75A; SL 2008, ch 251, § 9; SL 2013, ch 238, § 13, eff. Apr. 1, 2013; SL 2024, ch 192, § 4.
49-45-10.1. Uniform scale tickets or receipts.
Upon receiving grain, a grain buyer shall issue to the seller an original uniform scale ticket or comparable receipt for each load of grain received. Tickets or receipts shall be numbered consecutively and a copy of each ticket or receipt shall be retained for six years.
Source: SL 2008, ch 251, § 10.
49-45-11. Voluntary credit sales.
Each voluntary credit sale of grain entered into by a grain buyer shall be in writing and shall have a settlement date. If a grain buyer meets the requirements set forth in § 57A-2-201(3)(d)(iii) when entering into a voluntary credit sale contract with a seller, the in writing requirement is considered met. The commission may, by rules promulgated pursuant to chapter 1-26, prescribe the form and content of the writings. If a grain buyer's license is terminated or not renewed, the grain buyer shall pay for grain subject to a voluntary credit sale within ten days after the license expiration date.
Source: SL 1985, ch 376, § 76; SL 2008, ch 251, § 11; SL 2015, ch 236, § 1.
49-45-13. Inspection of buyers' facilities--Examination of books--Subpoena power.
The commission shall cause the business facilities of every grain buyer, whether licensed or unlicensed, to be inspected at such times as the commission considers necessary. The inspector shall report in writing to the commission the result of the examination. The inspector may at any time during business hours enter any structure, vehicle, or enclosure in which the books or accounts of any grain buyer are kept, and may examine all the books, accounts, and electronic records relating to the transactions of the grain buyer either within or without the state. The commission may, in all matters arising under this chapter, exercise the power of subpoena and examine witnesses in accordance with chapter 1-26.
Source: SL 1985, ch 376, § 78; SL 2008, ch 251, § 12; SL 2011, ch 211, § 9.
49-45-13.1. Memorandum of adjustments--Civil fine for failure to comply.
Upon completing an inspection, an inspector may issue a memorandum of adjustments. The commission may assess a civil fine in the amount of two hundred dollars for failure to comply with the memorandum of adjustments within thirty days. After thirty days, each day that the memorandum goes uncorrected may be considered a separate offense.
Source: SL 2008, ch 251, § 13.
49-45-14. Reports by buyers--Public inspection not permitted--Violation as misdemeanor.
Every grain buyer licensed in this state shall, at such times as the commission requires, furnish the commission on forms prepared by the commission, reports showing the facts and information required by the commission. The reports are not for public inspection, but the commission may, upon request, furnish the total of the figures shown on such reports if the figures requested are for not less than four grain buyers. The commission may also require that a grain buyer provide any other documents and information regarding the business of the grain buyer. None of the documents and information obtained through the licensing and inspection processes are subject to public inspection. A violation of this section is a Class 1 misdemeanor.
Source: SL 1985, ch 376, § 79; SL 2008, ch 251, § 14; SL 2013, ch 238, § 15, eff. Apr. 1, 2013.
49-45-16. Grounds for suspension of grain buyer's license--Hearing--Revocation.
The commission may immediately suspend the license of a grain buyer and the grain buyer shall surrender the license to the commission if:
(1) The grain buyer refuses, neglects, or is unable, upon proper demand, to redeem any scale ticket issued by the grain buyer, through redelivery or cash payment;
(2) The grain buyer refuses, neglects, or is unable to provide a bond in an amount required by the commission;
(3) The commission has knowledge of any act of insolvency, including the filing of a petition in bankruptcy naming the grain buyer as debtor; or
(4) The grain buyer refuses to submit to an inspection or cooperate with the lawful requests of a commission inspector, including requests for access to and copies of the books and records of the grain buyer.
Within fifteen days the grain buyer may request a hearing pursuant to chapter 1-26 to determine if the license should be revoked. If no request is made within fifteen days, the commission shall revoke the license.
Source: SL 1989, ch 404, § 5; SL 2008, ch 251, § 15; SL 2011, ch 211, § 10; SL 2013, ch 238, § 16, eff. Apr. 1, 2013.
49-45-16.1. Receiver--Powers and duties.
If the commission determines that it is necessary, the commission may apply to the circuit court in the county in which the grain buyer operates or operated for that court to appoint a receiver. The receiver shall have such powers and duties as the court may direct.
Source: SL 2011, ch 211, § 11.
49-45-17. Recovery of damages for breach of obligation under bond--Notice to commission--Time for commission response.
Any person injured by the breach of any obligation of a grain buyer, for the performance of which a bond has been given under any of the provisions of this chapter, may sue on the bond in the person's own name in any court of competent jurisdiction to recover any damages the person may have sustained by reason of the breach. However, a person may sue on the bond only if the person has notified the commission of the person's intent to sue on the bond and if the commission has stated in writing that it does not intend to institute any proceedings regarding the bond. The commission shall respond in writing within sixty days of notification stating whether the commission intends to institute any proceedings regarding the bond. If the commission fails to respond in writing within the sixty days, the person may proceed to sue on the bond in the person's own name.
Source: SL 1989, ch 404, § 6; SL 2008, ch 251, § 16; SL 2011, ch 211, § 12; SL 2012, ch 232, § 10.
49-45-18. Audit of scale tickets--Certification of quantity and class of grain.
If the commission becomes aware of any act by any grain buyer as described in § 49-45-16, the commission may:
(1) Undertake an immediate audit and verify the names and addresses of all outstanding scale ticket holders as revealed by the audit, and audit and certify the quantity and class or classes of grain therein;
(2) Immediately notify the surety named in the grain buyer bond, if any, held by such grain buyer.
Source: SL 1989, ch 404, § 7; SL 2008, ch 251, § 17.
49-45-19. Grain buyer license—Revocation—Filing of claims.
Upon the revocation of a grain buyer license, any claim against the grain buyer arising under this chapter must be made in writing and filed with the commission, within ninety days after receiving notice of the revocation.
Upon the revocation of a grain buyer license, the commission shall:
(1) Once each week for two consecutive weeks, publish notice of the revocation in:
(a) A newspaper of general circulation in each county in which the grain buyer maintains a business location; and
(b) A newspaper of general circulation within the state; and
(2) Send, by certified mail, to each scale ticket holder named in an audit prepared pursuant to § 49-45-18, a notice of revocation that includes:
(a) The name and address of the grain buyer;
(b) The effective date of the revocation;
(c) The name and address of the surety on the grain buyer bond; and
(d) A statement that any claims against the grain buyer must be made in writing and sent by ordinary mail to the commission, within ninety days after receiving notice of the revocation.
Source: SL 1989, ch 404, § 8; SL 1992, ch 332, § 7; SL 2008, ch 251, § 18; SL 2017, ch 200, § 6; SL 2022, ch 176, § 1.
49-45-21. Commission authorized to contract for inspection of grain buyers' assessment and checkoff records.
The commission may contract with the Wheat Commission pursuant to § 38-10-41, with the South Dakota Oilseeds Council pursuant to § 38-27-19, the Soybean Research and Promotion Council pursuant to § 38-29-14, the South Dakota Corn Utilization Council pursuant to § 38-32-24, and the South Dakota Pulse Crop Council pursuant to § 38-34-21. Under the terms of any such contract, the commission may inspect the records of licensed grain buyers to determine compliance with assessment and checkoff requirements imposed by chapters 38-10, 38-27, 38-29, and 38-32 and the provisions of chapter 38-34.
Source: SL 1996, ch 245, § 5; SL 2005, ch 214, § 22; SL 2008, ch 251, § 23.
49-45-22. Class A license requirements--Violation as misdemeanor.
A grain buyer with a Class A license shall keep all company owned grain in the grain buyer's possession insured at current market value of the grain against loss by fire, windstorm, and extended coverage risks. The grain buyer shall furnish the commission with proof of the insurance when the grain buyer applies for a license. A grain buyer with a Class A license shall submit a quarter-ending balance sheet to the commission for inspection within thirty days of the end of each quarter. The balance sheet reports shall be based on each grain buyer's fiscal year. A violation of this section is a Class 1 misdemeanor.
Source: SL 2008, ch 251, § 20; SL 2018, ch 268, § 3.
49-45-23. Records of grain purchased and contracts.
A grain buyer shall keep all records of grain purchased and all contracts issued and canceled in a safe place. The records shall be kept current and open for inspection by the commission. Each record shall be retained for a period of six years.
Source: SL 2008, ch 251, § 21.
49-45-24. Notice of destruction of or damage to facility.
A grain buyer shall notify the commission, within twenty-four hours, if the facility of a facility-based grain buyer is destroyed or substantially damaged.
Source: SL 2008, ch 251, § 22.
49-45-25. Grain buyer's financial condition--Notice to commission--Penalty--Civil fine.
If during the licensing period a grain buyer becomes aware that the grain buyer is not in compliance with each financial standard, as set forth in the commission's rules, the grain buyer shall immediately notify the commission of the grain buyer's financial condition. When notification occurs, the commission shall immediately conduct an examination to determine if any grounds for suspension pursuant to § 49-45-16 have occurred.
A willful violation of this section that results in a financial loss to a grain supplier is punishable as theft under chapter 22-30A.
A willful violation that does not result in a financial loss to a grain supplier is a Class 1 misdemeanor.
The commission may assess, against an out-of-compliance grain buyer, a civil fine in an amount not to exceed one thousand dollars for each day the grain buyer has been out of compliance, up to a maximum of twenty thousand dollars per licensing period, as set forth in § 49-45-3.
Source: SL 2013, ch 238, § 17, eff. Apr. 1, 2013; SL 2022, ch 174, § 5; SL 2022, ch 177, § 1.
49-45-26. Provision of requested records--Penalty--Civil fine.
A grain buyer, the owner, manager, or chief executive officer of a grain buyer, or any other person in a managerial position, whether licensed or unlicensed, who or that purchases grain in this state, shall, within five working days of an inspector's request, provide to the inspector, at a licensed location within this state or at the offices of the commission, all books, accounts, and electronic records relating to the transactions of the grain buyer, either within or outside the state.
A willful violation of this section is a Class 1 misdemeanor.
The commission may assess a civil fine in an amount not to exceed one thousand dollars for each day requested materials are withheld, up to a maximum of twenty thousand dollars per licensing period, as set forth in § 49-45-3.
Source: SL 2013, ch 238, § 18, eff. Apr. 1, 2013; SL 2022, ch 174, § 6.
49-45-27. Owner, manager, or chief executive officer responsible for violation is subject to criminal penalty.
The owner, manager, or chief executive officer of a grain buyer, or any other person in a managerial position, who is responsible for any violation of this chapter by a grain buyer is subject to any criminal penalty that applies to a grain buyer under the provisions of this chapter.
Source: SL 2013, ch 238, § 19, eff. Apr. 1, 2013.
49-45-28. Parent company furnishing financial statements responsible for financial obligations of licensed entity.
If an applicant for a grain buyer license that is a subsidiary of a parent company submits the financial statements of the parent company, the parent company furnishing the financial statements is responsible for all the financial obligations incurred by the licensed entity related to the purchase and storage of grain, including any voluntary credit sale contract.
Source: SL 2013, ch 238, § 20, eff. Apr. 1, 2013; SL 2015, ch 236, § 2.
49-45-29. Grain broker--Prohibited activities--Penalty--Civil fine.
It is a Class 5 felony for a grain broker to:
(1) Negotiate or attempt to negotiate a grain transaction with a grain buyer, who is not licensed in accordance with this chapter; or
(2) Take title or attempt to take title to grain that is subject to a transaction being negotiated by the grain broker.
The commission may assess a civil fine against a grain broker in the amount of five thousand dollars for each violation of this section, up to a maximum fine of fifty-thousand dollars, annually.
Source: SL 2022, ch 175, § 3.
49-46-1
Definition of terms.
49-46-2
Rules for development and implementation of program--Submission of program plan
to federal Department of Energy.
49-46-3
Utilities' duties--Liability for violations.
49-46-4
Civil fine for violation by utility--Enforcement action--Venue.
49-46-5
Liability of utility arranging loans or installation for customer.
49-46-6
Master record of suppliers, installers and lenders--Requirements for inclusion and
removal.
49-46-1. Definition of terms.
Terms used in this chapter mean:
(1) "Covered utility," in any calendar year a public utility which during the second preceding calendar year, had either sales of natural gas, for purposes other than resale, which exceeded ten billion cubic feet, or sales of electric energy, for purposes other than resale, which exceeded seven hundred fifty million kilowatt-hours;
(2) "Eligible customer," a person who receives a fuel bill from a covered utility and who owns or occupies a residential building containing at least one but not more than four dwelling units;
(3) "Office," the Governor's Office of Economic Policy;
(4) "Program," residential conservation service program.
Source: SL 1981, ch 345, § 1; SL 1991, ch 16, § 4; SL 1994, ch 410 (Ex. Ord. 93-9), § 18.
49-46-2. Rules for development and implementation of program--Submission of program plan to federal Department of Energy.
The office may promulgate, monitor and enforce rules pursuant to chapter 1-26 for the development and implementation of a residential conservation service program in furtherance of the National Energy Conservation Policy Act, 42 USC 8201, et seq. The office shall submit to the United States Department of Energy a state plan describing the requirements of the program, as required by the federal law described in this section.
Source: SL 1981, ch 345, § 2.
49-46-3. Utilities' duties--Liability for violations.
All covered utilities shall offer a residential energy audit to each of its eligible customers pursuant to the state plan. All covered utilities shall comply in good faith with all the provisions of the state plan. If a covered utility violates the state plan, it shall pay for all costs associated with investigation and prosecution of any complaints.
Source: SL 1981, ch 345, § 3.
49-46-4. Civil fine for violation by utility--Enforcement action--Venue.
Any covered utility that violates any mandatory provision of the state plan promulgated under this chapter is subject to a civil fine not to exceed five hundred dollars per day for each day that the covered utility is in violation. Upon the request of the office, the attorney general shall bring action to enforce the provisions of the state plan. The venue for such action is Hughes County.
Source: SL 1981, ch 345, § 4.
49-46-5. Liability of utility arranging loans or installation for customer.
No covered utility that arranges for a lender to make a loan to, or an installer to perform work for an eligible customer is liable in any cause of action between such customer and such lender or installer, unless the utility is the lender or installer. No covered utility is liable to a customer for any claim arising out of a post-installation inspection required and conducted under the state plan, unless the utility is the lender, installer, or supplier.
Source: SL 1981, ch 345, § 5.
49-46-6. Master record of suppliers, installers and lenders--Requirements for inclusion and removal.
The office shall compile and update periodically a master record of suppliers, installers, and lenders who agree to participate in and meet the requirements of the program. The office shall follow the provisions in the state plan with regard to removal procedures from the master record. To be included in the master record, a supplier, installer, or lender shall agree to comply with the requirements for inclusion and removal contained in the state plan and may be removed by the office for failure to comply with the provisions of the state plan.
Source: SL 1981, ch 345, § 6.
49-47-1
Definitions.
49-47-2
Promulgation of rules.
49-47-3
Notice to utility prerequisite to civil action--Utility measurements--Remedial
procedures.
49-47-4
Complaint of failure to comply with chapter--Decision by commission.
49-47-5
Bad faith or harassment claims.
49-47-6
Civil actions.
49-47-7
Limitation of damages in civil action.
49-47-8
Negligence claims only permitted.
49-47-1. Definitions.
Terms used in this chapter mean:
(1) "Adequate remediation," corrective action by an electric utility that results in, and is reasonably likely to sustain, a reduction of stray current or voltage attributable to the electric utility's distribution system of fifty percent or less of the preventive action level;
(2) "Commission," the Public Utilities Commission;
(3) "Cow contact points," any two electrically conductive points that a dairy cow may, in its normal environment, unavoidably and simultaneously contact;
(4) "Electric utility" or "utility," an electric utility as defined in § 49-34A-1;
(5) "Preventive action level," stray current or voltage that is either:
(a) A steady-state, root mean square (rms), alternating current (AC) of 2.0 milliamp (mA) or more through a 500 ohm resistor connected between cow contact points, as measured by a true rms meter; or
(b) A steady-state, rms, AC voltage of 1.0 volts or more, across (in parallel with) a 500 ohm resistor connected between cow contact points, as measured by a true rms meter;
(6) "Steady-state," the value of a current or voltage after an amount of time where all transients have decayed to a negligible value;
(7) "Stray current or voltage,":
(a) Any steady-state, 60 hertz (Hz) (including harmonics thereof), root mean square (rms), alternating current (AC) of less than 20 milliamp (mA) through a 500 ohm resistor connected between cow contact points, as measured by a true rms meter; or
(b) Any steady-state, 60 Hz (including harmonics thereof), rms, AC voltage of less than 10 volts, across (in parallel with) a 500 ohm resistor connected between cow contact points, as measured by a true rms meter.
Source: SL 2015, ch 237, § 1.
49-47-2. Promulgation of rules.
Within twelve months of July 1, 2015, the commission shall promulgate rules, pursuant to chapter 1-26, concerning:
(1) Acceptable standards for measurements of stray voltage;
(2) Procedures and requirements for testing used to measure stray voltage;
(3) Responsibilities of dairy producers, including notice requirements and cooperation with measuring and testing procedures conducted by electric utilities;
(4) Responsibilities of electric utilities, including response to notices from dairy producers;
(5) Tests used to detect and measure stray voltage;
(6) Qualifications of persons performing and analyzing results of stray voltage tests;
(7) Requirements for stray voltage measuring and recording equipment;
(8) Protocols for persons performing stray voltage tests; and
(9) Remediation guidelines.
The commission shall review the rules from time to time, or upon petition to the commission, to ensure that the rules adopted by the commission to establish uniform procedures and protocols continue to be the most scientifically and technologically accurate and reliable means of detecting stray current or voltage. Any measurements of stray current or voltage not made in compliance with commission rules shall be inadmissible before the commission or in any civil action. The commission rules shall be applicable to dairy producers, electric utilities, and all persons or entities involved in any way in the measurement or remediation of stray current or voltage in this state.
Source: SL 2015, ch 237, § 2.
49-47-3. Notice to utility prerequisite to civil action--Utility measurements--Remedial procedures.
Any dairy producer in this state who claims that the producer's dairy cows are being affected by any form or type of electrical energy allegedly attributable to an electric utility including, without limitation, stray current or voltage, shall, as a condition precedent to commencing any civil action against the utility, provide written notice of the affect to the utility. The notice shall specify why the dairy producer believes the producer's dairy cows are being affected by electrical energy attributable to the utility. Within fourteen business days of receipt of the notice, the utility shall take measurements at cow contact points at the dairy producer's dairy to identify the existence and magnitude of stray current or voltage, if any. If the utility finds a level of stray current or voltage at cow contact points in excess of the preventive action level, the utility shall promptly identify that portion, if any, of the stray current or voltage that is attributable to the utility's distribution system. If that portion of the stray current or voltage at cow contact points attributable to the utility's distribution system exceeds fifty percent of the preventive action level, the utility shall, within seven business days, commence and diligently pursue to completion, remedial procedures which shall reduce, and are reasonably likely to sustain, that portion of the stray current or voltage at cow contact points attributable to the utility's distribution system to fifty percent or less of the preventive action level, unless extraordinary circumstances prevent the utility from commencing remedial action within seven business days. In such case, the utility has an additional seven business days to commence and pursue to completion remedial procedures.
Source: SL 2015, ch 237, § 3.
49-47-4. Complaint of failure to comply with chapter--Decision by commission.
A dairy producer or utility may file a complaint with the commission claiming that there has been a failure to comply with this chapter. The commission has exclusive, initial jurisdiction to determine:
(1) Whether the dairy producer has provided the requisite notice to the electric utility;
(2) Whether the dairy producer has cooperated with the electric utility to allow the utility to complete measuring and testing;
(3) Whether a utility has complied with the commission rules regarding measurement of stray current or voltage;
(4) Whether the utility's measurements demonstrated stray current or voltage at or above the preventive action level;
(5) Whether the utility has properly identified that portion of the stray current or voltage at cow contact points attributable to the utility's distribution system; and
(6) Whether the utility has complied with its remediation obligation under this chapter.
After opportunity for hearing, the commission shall issue a decision finding whether this chapter has been complied with or not. If one or more provisions of this chapter have not been complied with, the commission shall order compliance within a period of time prescribed by the commission. The commission shall assess its costs associated with the complaint equally between the dairy producer and the utility.
Source: SL 2015, ch 237, § 4.
49-47-5. Bad faith or harassment claims.
If, after hearing, the commission determines that a dairy producer made or pursued a claim in bad faith or for purposes of harassment of the utility, the commission shall require the dairy producer to pay the utility's actual costs of investigation. If, after hearing, the commission determines that an electric utility acted in bad faith or for purposes of harassment or delay, the commission shall require the utility to pay the dairy producer's actual costs of investigation, if any.
Source: SL 2015, ch 237, § 5.
49-47-6. Civil actions.
No civil action may be commenced by a dairy producer against an electric utility seeking damages or other relief allegedly due to injury caused by stray current or voltage unless the dairy producer has complied with the provisions of § 49-47-3, and the commission has issued an order pursuant to § 49-47-4 or 49-47-5. In any civil action against a utility for damages or other relief, after the dairy producer has complied with the provisions of § 49-47-3, and the commission has issued an order pursuant to § 49-47-4 or 49-47-5, the commission's order is admissible in evidence in such civil actions. The dairy producer may commence the civil action not later than one year following the issuance of the commission's final order or one year following the completion of any appeals of the commission's final order, whichever occurs later.
Source: SL 2015, ch 237, § 6.
49-47-7. Limitation of damages in civil action.
In any civil action against an electric utility for damages pursuant to this chapter, a dairy producer is limited to those damages which were incurred by the dairy producer during that period of time commencing twelve months prior to the dairy producer's provision of notice to the utility and ending on the date of completion of adequate remediation, and were caused by that portion of the stray current or voltage attributable to the utility's distribution system.
Source: SL 2015, ch 237, § 7.
49-47-8. Negligence claims only permitted.
Any claim against an electric utility for damages due to stray current or voltage is limited to a claim of negligence, including in the case of a prior determination of the commission pursuant to § 49-47-4 or 49-47-5, negligence per se. In determining whether the utility was negligent, the utility's conduct shall be judged using the commission rules.
Source: SL 2015, ch 237, § 8.