South Dakota

(information last updated Fall 2017)

Collection of Information:

Ag-Gag Law:

“No person, without consent, may:

     (1) Intentionally damage or destroy an animal facility, an animal, or property in or on the animal facility, or obstruct any enterprise conducted at the animal facility; . . .

      (3) Enter an animal facility, not then open to the public, with intent to commit any act prohibited by this section;

      (4) Enter an animal facility and remain concealed, with intent to commit any act prohibited by this section;

      (5) Enter an animal facility and commit or attempt to commit any act prohibited by this section”  S.D. Codified Laws § 40-38-2.

 

“No person may, without consent, and with the intent to obstruct the enterprise conducted at the animal facility, enter or remain on an animal facility, if the person had notice that the entry was forbidden or received notice to depart but failed to do so.”  S.D. Codified Laws § 40-38-3.

 

Private parties can recover treble damages in a civil suit.  S.D. Codified Laws § 40-38-5.

Trespass Laws:

Criminal Liability for Trespass Despite Lack of Notice:

No.  In order for entry upon property to constitute criminal trespass, “notice against trespass [must be] given by: . . . [p]osting . . . or . . . fencing.”  S.D. Codified Laws § 22-35-6.

Other Provisions:

See supra “Ag-Gag Law.”

Stalking Laws:

Criminal Law:

“No person may:

    (1)  Willfully, maliciously, and repeatedly follow or harass another person;

    (2)  Make a credible threat to another person with the intent to place that person in reasonable fear of death or great bodily injury; or

    (3)  Willfully, maliciously, and repeatedly harass another person by means of any verbal, electronic, digital media, mechanical, telegraphic, or written communication.

A violation of this section constitutes the crime of stalking.  Stalking is a Class 1 misdemeanor.  However, any second or subsequent conviction occurring within ten years of a prior conviction under this section is a Class 6 felony.”  S.D. Codified Laws § 22-19A-1. 

Civil Law:

 “In addition to the criminal penalty provided in § 22-19B-1, there is a civil cause of action for malicious harassment.  The victim of malicious harassment may recover both special and general damages, including damages for emotional distress, reasonable attorney fees and costs, and punitive damages.  The civil cause of action for malicious harassment is in addition to any other remedies, criminal or civil, otherwise available under law.”  S.D. Codified Laws § 20-9-32.

Use of Information:

Although our research is incomplete, these provisions address the use of information collected by citizens.

Explicitly Allows:

“Notwithstanding any other provision, any credible evidence may be used for the purpose of establishing whether a person has violated or is in violation of a[n air pollution control] plan.”  S.D. Admin. R. 74:36:13:07.

Prohibitive by Effect:

“Credible evidence is as follows: . . .

(2) The following testing, monitoring, or information gathering methods are presumptively credible testing, monitoring, or information-gathering methods;

(a) Any federally enforceable monitoring or

testing methods, including those in 40 C.F.R. Pts. 51, 60, 61, and 75 . . .;

(b) Other testing, monitoring or information-

gathering methods that produce information comparable to that produced by any method in [this section].”  S.D. Admin. Rule 74:36:13:07.

Evidentiary Standards:

Pleading a Claim:

Requires certification that “[t]he allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.”  S.D. Codified Laws § 15-6-11(b).

Authentication or Chain of Custody:

 

“To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”  S.D. Codified Laws § 19-19-901.

Expert Testimony:

Daubert standard.  See State v. Hofer, 512 N.W.2d 482, 484 (S.D. 1994).

Discussion

Please note that this discussion is not moderated by the Emmett Environmental Law & Policy Clinic.