ARSD Article 04:01 — LEASES

SCHOOL AND PUBLIC LANDS SCHOOL AND PUBLIC LANDS

Chapter 04:01:01 Oil and gas leases

ARSD 04:01:01:01 Terms

Terms defined in SDCL 5-1-2 shall have the same meaning in these rules.

History

• Source: 2 SDR 36, effective November 17, 1975.
• General Authority: SDCL 5-7-37.
• Law Implemented: SDCL 5-7-21.

ARSD 04:01:01:02 Proof of publication

All newspapers shall file proof of publication with the commissioner before the date of the auction on forms supplied by the department.

History

• Source: 2 SDR 36, effective November 17, 1975.
• General Authority: SDCL 5-7-37.
• Law Implemented: SDCL 5-7-21.

ARSD 04:01:01:03 Successful bidder required

Before a lease is executed, the successful bidder shall be required to pay the prorated cost of all advertising as disclosed by the proof of publication thereof filed in the office of the commissioner.

History

• Source: 2 SDR 36, effective November 17, 1975.
• General Authority: SDCL 5-7-37.
• Law Implemented: SDCL 5-7-21.

ARSD 04:01:01:04 Size of lease units

Leases shall be issued primarily to include units of 640 acres, more or less; and shall be issued for a lesser area only in the event that there are no other lands administered by the department contiguous to or cornering said lesser area. Each fractional acre shall be considered to be one acre.

History

• Source: 2 SDR 36, effective November 17, 1975; 5 SDR 25, effective October 12, 1978.
• General Authority: SDCL 5-7-19, 5-7-37.
• Law Implemented: SDCL 5-7-19.

ARSD 04:01:01:05 Minimum rental rate

Acceptable payment in the amount computed at the rate of one dollar per acre, plus a minimum bonus calculated as provided in §§ 4:01:01:06 and 4:01:01:07 for each tract of land in each county, shall accompany each application, and this amount shall be forfeited if the applicant is the successful bidder and fails to execute the lease.

History

• Source: 2 SDR 36, effective November 20, 1975; 5 SDR 40, effective November 26, 1978.
• General Authority: SDCL 5-7-24, 5-7-37.
• Law Implemented: SDCL 5-7-20, 5-7-24, 5-7-25.

ARSD 04:01:01:06 Minimum bonus by area

The minimum bonus per acre shall be determined by geographical location within the state of South Dakota. Locations are defined as follows:

(1) Area "A" is that portion of South Dakota including the counties of Butte, Meade, Ziebach, Dewey, Corson, Perkins, Pennington, Harding, Haakon, Jackson, Stanley, Jones, Lawrence, Custer, Fall River, Bennett, Tripp, Gregory, Lyman, Mellette, Shannon, Washabaugh, Todd, Campbell, Walworth, Potter, Sully, and Hughes; and

(2) Area "B" is that portion of South Dakota including the counties of Buffalo, Brule, Hyde, Hand, Faulk, Edmunds, McPherson, Charles Mix, Brown, Spink, Beadle, Jerauld, Aurora, Bon Homme, Yankton, Clay, Union, Lincoln, Minnehaha, Moody, Brookings, Deuel, Grant, Roberts, Marshall, Day, Clark, Codington, Hamlin, Kingsbury, Sanborn, Miner, Lake, Davison, Hanson, McCook, Douglas, Hutchinson, and Turner.

History

• Source: 2 SDR 36, effective November 20, 1975; 5 SDR 25, effective October 12, 1978; 7 SDR 75, effective February 8, 1981.
• General Authority: SDCL 5-7-24, 5-7-37.
• Law Implemented: SDCL 5-7-20, 5-7-24, 5-7-37.

ARSD 04:01:01:07 Minimum bonus rate

The minimum bonus is as follows:

(1) $2.00 per acre for Area "A"; and

(2) $0.50 per acre for Area "B."

History

• Source: 2 SDR 36, effective November 20, 1975; 5 SDR 25, effective October 12, 1978; 7 SDR 75, effective February 8, 1981.
• General Authority: SDCL 5-7-24, 5-7-37.
• Law Implemented: SDCL 5-7-20, 5-7-24, 5-7-37.

ARSD 04:01:01:08 Annual payment required

All oil and gas rental payments shall be payable on an annual basis. These payments will be as for rent and will cover the privilege of deferring the drilling of a well for 12 months from the anniversary date of the lease.

History

• Source: 2 SDR 36, effective November 17, 1975.
• General Authority: SDCL 5-7-23, 5-7-37.
• Law Implemented: SDCL 5-7-23, 5-7-24.

ARSD 04:01:01:09 Procedure in event of dry hole

If the first well drilled on the land covered in one lease is dry and if the drilling of a second well is not begun within 12 months from the expiration of the last rental period for which the rental has been paid, the lease will terminate. This section will not apply if the lessee resumes payment of rentals under the conditions of the lease and these rules, on or before expiration of the 12 months period specified above.

History

• Source: 2 SDR 36, effective November 17, 1975.
• General Authority: SDCL 5-7-23, 5-7-37.
• Law Implemented: SDCL 5-7-23.

ARSD 04:01:01:10 Continuation of lease after resumption of rental payments

Upon resumption of rental payments as provided in § 4:01:01:09, the conditions of the lease and the operation of these rules shall continue in force as though there were no interruptions in rental payments.

History

• Source: 2 SDR 36, effective November 17, 1975.
• General Authority: SDCL 5-7-23, 5-7-37.
• Law Implemented: SDCL 5-7-23.

ARSD 04:01:01:11 Completion of a well allowed if commenced within the term of lease

The lessee shall have the right to continue drilling a well to completion with reasonable diligence and dispatch if the lessee begins to drill that well within the term of the lease or an extension thereof. If oil or gas is found in paying quantities, the lease shall be in force as if the well had been completed within the term of the lease or its extension.

History

• Source: 2 SDR 36, effective November 17, 1975.
• General Authority: SDCL 5-7-23, 5-7-37.
• Law Implemented: SDCL 5-7-23.

ARSD 04:01:01:12 Cancellation because of failure to produce

After the primary term of an oil and gas lease where a lease is bound by production, the lease will be canceled unless the lessee shall commence a new well on the lease or resume commercial production from the existing well within 90 days, unless a temporary abandonment has been issued pursuant to § 52:02:04:03.

History

• Source: 2 SDR 36, effective November 17, 1975.
• General Authority: SDCL 5-7-23, 5-7-37.
• Law Implemented: SDCL 5-7-23.

ARSD 04:01:01:13 Commercial production defined

Commercial production, as provided in § 4:01:01:12, shall be a monthly production equal to one-half the average production per month for the preceding six months.

History

• Source: 2 SDR 36, effective November 17, 1975.
• General Authority: SDCL 5-7-23, 5-7-37.
• Law Implemented: SDCL 5-7-23.

ARSD 04:01:01:14 Minimum filing fee

A filing fee of $10 per lease shall be charged for each assignment. Requests to write in an overriding royalty provision in a lease shall be considered as an assignment.

History

• Source: 2 SDR 36, effective November 17, 1975.
• General Authority: SDCL 5-7-27, 5-7-37.
• Law Implemented: SDCL 5-7-27.

ARSD 04:01:01:15 Term of oil and gas lease -- Rental rate

The term of an oil and gas lease is five years. Rental rate is one dollar per acre per year on a drill or pay basis.

History

• Source: 2 SDR 36, effective November 20, 1975; 5 SDR 40, effective November 26, 1978; 7 SDR 75, effective February 8, 1981.
• General Authority: SDCL 5-7-23, 5-7-37.
• Law Implemented: SDCL 5-7-23.

ARSD 04:01:01:16 Repealed

Royalty rate.** Repealed.

History

• Source: 2 SDR 36, effective November 17, 1975; 5 SDR 40, effective November 26, 1978; repealed, 19 SDR 42, effective September 28, 1992.

ARSD 04:01:01:17 Shut-in royalty clause

Each lease shall contain a shut-in royalty clause. An operator shall notify the commissioner of a shut-in on a form obtained from the commissioner's office. The annual shut-in royalty rate is $1.00 per acre.

History

• Source: 2 SDR 36, effective November 17, 1975; 5 SDR 25, effective October 12, 1978; 19 SDR 42, effective September 28, 1992.
• General Authority: SDCL 5-7-24, 5-7-37.
• Law Implemented: SDCL 5-7-24, 5-7-25.

ARSD 04:01:01:18 Increment status lease

An individual may petition for a royalty increment status lease by filing a completed petition form. The petition form shall be obtained from the commissioner. Within 30 days after receipt of a completed petition, the commissioner shall set the time and place for a hearing pursuant to SDCL chapter 1-26 and shall notify the petitioner. The petitioner shall notify all mineral interest owners and lessees within one mile surrounding the leased area of the petition and hearing at least 15 days before the hearing.

History

• Source: 19 SDR 42, effective September 28, 1992.
• General Authority: SDCL 5-7-37.
• Law Implemented: SDCL 1-26-27, 5-7-41.

Chapter 04:01:02 Grazing leases

ARSD 04:01:02:01 Terms

Terms defined in SDCL 5-1-2, 5-5-1 and 5-5-10.1 shall have the same meaning in this chapter. In addition, terms used in this chapter, unless the context plainly requires otherwise, mean:

(1) "Pasturing agreement," a contract whereby two parties agree on a rate of payment for pasturing of livestock for a given period of time;

(2) "Animal unit," one cow and calf, one horse, five sheep or five goats;

(3) "Animal unit month" or "AUM," the amount of natural feed required to sustain an animal unit for one month;

(4) "Multiple use concept," the policy that the federal government maintains with regard to certain federal lands in South Dakota, which, as stated in 16 USCA 531(A), contemplates that such lands will be managed in a harmonious and coordinated manner, with consideration being given to all the relative values of the land's resources, without regard to whether or not such management will give the greatest dollar return or unit output.

History

• Source: 3 SDR 31, effective October 28, 1976.
• General Authority: SDCL 5-5-3.
• Law Implemented: SDCL 5-5-3.

ARSD 04:01:02:02 Criteria for establishing rental rate

To establish the current rental prevailing, or fair market value on school and endowment lands, the following criteria shall be used by the commissioner in establishing the grazing lease rates to be charged:

(1) A determination of the cost per animal unit month (AUM) presently charged for leasing of public and private grazing lands for pasturing of livestock in counties of the state where school and endowment lands exist;

(2) An adjustment of two dollars per AUM will be allowed for the placing of improvements such as fences, dams, dugouts and wells from the AUM rate determined on private grazing lands for pasturing livestock as provided in subdivision (1) of this section;

(3) An adjustment upward from prevailing public land grazing lease rates will be made to compensate for the dollar value of a federal grazing permit or right such as those on forest service or bureau of land management lands, multiple use concept, or other factors that would differentiate from fair market value;

(4) The animal unit carrying capacity of each tract will be determined under the authority of SDCL 5-5-10.2 by use of the factors set forth in SDCL 5-5-10.3;

(5) To determine the rental rate of a tract of land the rental rate established by the commissioner in accordance with subdivisions (1), (2), and (3) of this section, shall be multiplied by the total AUM's of said tract;

(6) To determine the rental rate per acre for each tract, the product of the multiplication in subdivision (5) of this section shall be divided by the number of acres in said tract.

History

• Source: 3 SDR 31, effective October 28, 1976.
• General Authority: SDCL 5-5-3.
• Law Implemented: Enabling Act, Section 11; South Dakota Constitution, Article VIII, Section 9; SDCL 5-5-25, 5-5-3, 5-5-10.2, 5-5-10.3.

ARSD 04:01:02:03 Time limit for placing improvements prior to sale

No permit to place improvements on a tract of school and endowment land will be issued after a legal offer to purchase has been received by the Department of School and Public Lands, or the Department of School and Public Lands has listed said tract for sale.

History

• Source: 3 SDR 31, effective October 28, 1976.
• General Authority: SDCL 5-5-3.
• Law Implemented: SDCL 5-5-3, 5-5-22.

ARSD 04:01:02:04 Time limit for placing improvements prior to lease expiration

No permit to place improvements on a tract of school and endowment land will be issued after October 1 in the final year of a lease.

History

• Source: 3 SDR 31, effective October 28, 1976.
• General Authority: SDCL 5-5-3.
• Law Implemented: SDCL 5-5-3, 5-5-22.

ARSD 04:01:02:05 Criteria for approval of pasturing agreements

All pasturing agreements made on school and endowment lands shall be subject to approval by the commissioner of school and public lands pursuant to § 4:01:02:07 and shall contain the following information:

(1) The charge per AUM being charged by the school or endowment land lessee;

(2) The total animal units allowed on each lease;

(3) The months said grazing will take place.

History

• Source: 3 SDR 31, effective October 28, 1976.
• General Authority: SDCL 5-5-3.
• Law Implemented: SDCL 5-5-3, 5-4-12.

ARSD 04:01:02:06 Repealed

Annual report required for AUM's utilized.** Repealed.

History

• Source: 3 SDR 31, effective October 28, 1976; 5 SDR 95, repealed May 9, 1979.

ARSD 04:01:02:07 Approval of pasturing agreements

If all factors in § 4:01:02:05 are met and do not violate the provisions in § 4:01:02:08, said pasturing agreement will be approved by the commissioner under § 4:01:02:05.

History

• Source: 3 SDR 31, effective October 28, 1976.
• General Authority: SDCL 5-5-3.
• Law Implemented: SDCL 5-5-3, 5-4-12.

ARSD 04:01:02:08 Grounds for cancellation of a grazing lease

Any of the following practices will be grounds for cancellation of a lease:

(1) Grazing of more animal unit months than allowed under the provisions of subdivision 4:01:02:02(3);

(2) Refusal to submit information or the submitting of inaccurate information, as provided by §§ 4:01:02:05 and 4:01:02:06.

History

• Source: 3 SDR 31, effective October 28, 1976.
• General Authority: SDCL 5-5-3.
• Law Implemented: SDCL 5-5-3, 5-4-12.

Chapter 04:01:03 Mineral leases

ARSD 04:01:03:01 Definitions

4:01:03 :01. Definitions. Terms defined in SDCL 5-1-2 have the same meaning in this chapter. In addition, the term department means the Department of School and Public Lands.

History

• Source: 21 SDR 179, effective April 20, 1995.
• General Authority: SDCL 5-7-37.
• Law Implemented: SDCL 5-7-45.

ARSD 04:01:03:02 Proof of publication

Newspapers shall file proof of publication of advertisement of mineral leases with the commissioner before the date of the auction on forms supplied by the department.

History

• Source: 21 SDR 179, effective April 20, 1995.
• General Authority: SDCL 5-7-37.
• Law Implemented: SDCL 5-7-37, 5-7-45.

ARSD 04:01:03:03 Successful bidder to pay advertising costs

Before a mineral lease is executed, the successful bidder shall pay the prorated cost of all advertising as disclosed by the proof of publication filed in the office of the commissioner.

History

• Source: 21 SDR 179, effective April 20, 1995.
• General Authority: SDCL 5-7-37.
• Law Implemented: SDCL 5-7-37, 5-7-45.

ARSD 04:01:03:04 Size of lease units

The commissioner shall issue leases primarily for units of approximately 640 acres. The commissioner may issue a lease for a lesser area only if there are no other lands administered by the department that are contiguous to or cornering the lesser area. Each fractional acre is considered to be one acre.

History

• Source: 21 SDR 179, effective April 20, 1995.
• General Authority: SDCL 5-7-37.
• Law Implemented: SDCL 5-7-37, 5-7-45.

ARSD 04:01:03:05 Rental rate

Payment of the minimum bonus rate, in the amount computed at the rate of one dollar per acre for each tract of land, shall accompany each nomination. This amount is forfeited if the applicant is the successful bidder and fails to execute the lease.

History

• Source: 21 SDR 179, effective April 20, 1995.
• General Authority: SDCL 5-7-37.
• Law Implemented: SDCL 5-7-37, 5-7-45.

ARSD 04:01:03:06 Bonus rate

Payment of the minimum bonus rate, in the form of a sealed bid, computed at the rate of two dollars per acre for each tract of land, shall accompany each nomination form. This amount is forfeited if the applicant is the successful bidder and fails to execute the lease.

History

• Source: 21 SDR 179, effective April 20, 1995.
• General Authority: SDCL 5-7-37.
• Law Implemented: SDCL 5-7-37, 5-7-45.

ARSD 04:01:03:07 Filing fee

A filing fee of $10 for each lease is charged for each assignment. A request to write in an overriding royalty provision in a lease is considered an assignment.

History

• Source: 21 SDR 179, effective April 20, 1995.
• General Authority: SDCL 5-7-37.
• Law Implemented: SDCL 5-7-37, 5-7-45.

ARSD 04:01:03:08 Terms and conditions

The standard mineral lease shall include all terms and conditions of the lease.

History

• Source: 21 SDR 179, effective April 20, 1995.
• General Authority: SDCL 5-7-37.
• Law Implemented: SDCL 5-7-37, 5-7-45.

Chapter 04:01:04 Schedule of fees

ARSD 04:01:04:01 Fee schedule

The commissioner shall charge the following fees:

(1) Assignment of a grazing or agricultural lease: the fee for assignment of a grazing or agricultural lease is $10;

(2) Assignment of a land sale contract: the fee for assignment of a land sale contract is $10;

(3) Application to remove sand and gravel: the application fee to remove sand, gravel, or other material is $15, and is not refundable.

History

• Source: 11 SDR 8, effective July 22, 1984.
• General Authority: SDCL 5-2-7, 5-5-3.
• Law Implemented: SDCL 5-2-7, 5-2-10, 5-2-11, 5-4-5, 5-4-5.1, 5-5-3, 5-5-16, 5-5-22, 5-5-24.

Chapter 04:01:05 Sand and gravel leases

ARSD 04:01:05:01 Market value of lease

The market value of a sand and gravel lease is the value placed on the sand, gravel, or other material at recognized market centers.

History

• Source: 11 SDR 8, effective July 22, 1984.
• General Authority: SDCL 5-2-7.
• Law Implemented: SDCL 5-2-7.

ARSD 04:01:05:02 Royalty rate

The royalty rate for a lease to remove sand, gravel, or other material shall be set by the commissioner for each lease or extension of a lease. The royalty rate shall not be less than 10 percent of the market value of the material removed, at the time it is sold or processed by the lessee. Royalty payments shall be made by the tenth of each month.

History

• Source: 11 SDR 8, effective July 22, 1984.
• General Authority: SDCL 5-2-7.
• Law Implemented: SDCL 5-2-7.

ARSD 04:01:05:03 Royalty in kind

At the option of the commissioner, the commissioner may take the royalty for a sand and gravel lease in kind. If the commissioner does, the lessee shall deliver the royalty sand, gravel, or other material to the commissioner on the leased premises in a manner agreed upon prior to the removal of the sand, gravel, or other material.

History

• Source: 11 SDR 8, effective July 22, 1984.
• General Authority: SDCL 5-2-7.
• Law Implemented: SDCL 5-2-5, 5-2-7.

Chapter 04:01:06 Weed and pest control

ARSD 04:01:06:01 Identification and control of weed and pest problems

The lessee shall identify and control noxious weeds and pests on the leased school land.

History

• Source: 11 SDR 8, effective July 22, 1984.
• General Authority: SDCL 5-5-3, 5-5-18.
• Law Implemented: SDCL 5-5-3, 5-5-18, 38-22-23.15.

ARSD 04:01:06:02 Purchase of chemical

The Department of School and Public Lands shall pay the cost of the chemical needed by the lessee of grazing land to control noxious weeds and pests on the leased school land.

History

• Source: 11 SDR 8, effective July 22, 1984.
• General Authority: SDCL 5-5-3, 5-5-18.
• Law Implemented: SDCL 5-5-3, 5-5-18, 38-22-23.15.

Chapter 04:01:07 Commercial leases

ARSD 04:01:07:01 Terms

Terms used in this chapter mean:

(1) "Commissioner," the commissioner of school and public lands;

(2) "Department," the Department of School and Public Lands;

(3) "Commercial lease," a lease characteristic of commerce or pertaining to business or doing business for a profit as opposed to a lease for grazing, forestry, agriculture, or minerals;

(4) "Lessee," the original lessee or the assignee of the lease;

(5) "Assignee," the person to whom the lease is being transferred.

History

• Source: 22 SDR 79, effective December 7, 1995.
• General Authority: SDCL 5-1-7.2.
• Law Implemented: SDCL 5-1-7.2.

ARSD 04:01:07:02 Lands subject to commercial leasing

All common school, indemnity, and endowment lands and any other land placed under the jurisdiction of the department may be leased for commercial purposes, but nothing in this chapter requires the commissioner to offer any tract of land for lease.

History

• Source: 22 SDR 79, effective December 7, 1995.
• General Authority: SDCL 5-1-7.2.
• Law Implemented: SDCL 5-1-7.2.

ARSD 04:01:07:03 Designating land to be leased

The commissioner may solicit or accept proposals from any person for commercial leasing of land that belongs to, or is placed under, the jurisdiction of the department.

History

• Source: 22 SDR 79, effective December 7, 1995.
• General Authority: SDCL 5-1-7.2.
• Law Implemented: SDCL 5-1-7.2.

ARSD 04:01:07:04 Minimum rental rate

4:01:07 :04. Minimum rental rate. The commissioner shall establish the minimum annual rental rate for a tract of land to be commercially leased. In fixing the minimum annual rental rate the commissioner shall consider location, accessibility, utility of the land, and current rental rates. The commissioner shall publish the minimum rental rate in the notice of public auction. The commissioner may only accept bids for commercial leases that are at or above the minimum annual rental rate.

History

• Source: 22 SDR 79, effective December 7, 1995.
• General Authority: SDCL 5-1-7.2.
• Law Implemented: SDCL 5-1-7.2.

ARSD 04:01:07:05 Publication of notice of leasing auction

The commissioner shall publish a notice stating the time and place of the public auction at which bids for commercial leases will be accepted. Before the auction, the notice shall be published once each week for at least four consecutive weeks in the official newspapers of the county in which the land is located.

History

• Source: 22 SDR 79, effective December 7, 1995.
• General Authority: SDCL 5-1-7.2.
• Law Implemented: SDCL 5-1-7.2.

ARSD 04:01:07:06 Term of leases

The term of commercial leases may not exceed 99 years.

History

• Source: 22 SDR 79, effective December 7, 1995.
• General Authority: SDCL 5-1-7.2.
• Law Implemented: SDCL 5-1-7.2.

ARSD 04:01:07:07 Development plan and selection

Bidders must provide the commissioner with a development plan and financial statement at the time of the bid opening. The commissioner shall select the most qualified lessee based on development and managerial experience, financial capabilities, proposed capital investments, leasing fees and benefits offered to the state, and any other criteria considered by the commissioner to be pertinent.

History

• Source: 22 SDR 79, effective December 7, 1995.
• General Authority: SDCL 5-1-7.2.
• Law Implemented: SDCL 5-1-7.2.

ARSD 04:01:07:08 Assignment of lease -- Filing fee

The lessee may assign a lease to a third person after receiving the written approval of the commissioner. The commissioner shall provide the form used for requesting such an assignment. The commissioner shall approve or disapprove the assignment within 60 days after receipt of the completed form. The commissioner's approval or disapproval shall be based on the assignee's financial capabilities and development and managerial experience and any other criteria considered by the commissioner to be pertinent. The filing fee for the assignment of a lease is $250.

History

• Source: 22 SDR 79, effective December 7, 1995.
• General Authority: SDCL 5-1-7.2.
• Law Implemented: SDCL 5-1-7.2.

ARSD 04:01:07:09 Grounds for cancellation of lease

The commissioner may cancel a lease for nonpayment of rentals, nonperformance by the lessee of any requirement of the lease, or a breach of any term of the lease.

History

• Source: 22 SDR 79, effective December 7, 1995.
• General Authority: SDCL 5-1-7.2.
• Law Implemented: SDCL 5-1-7.2.

ARSD 04:01:07:10 Notice of intent to cancel lease -- Remedy of default

The commissioner shall mail to the lessee or assignee, by registered or certified letter, a notice of intention to cancel the lease, specifying the reason for which the lease is subject to cancellation. A notice of intent to cancel is not required for nonpayment of rentals by the date they are due. If the lessee or assignee remedies the default specified in the cancellation notice within 30 days after the mailing of the notice to the lessee or assignee, the commissioner may not order the cancellation of the lease. If the specified default is not remedied, the commissioner may cancel the lease and all the rights of the lessee or assignee under the lease shall terminate.

History

• Source: 22 SDR 79, effective December 7, 1995.
• General Authority: SDCL 5-1-7.2.
• Law Implemented: SDCL 5-1-7.2.

Chapter 04:01:08 Land exchanges

ARSD 04:01:08:01 Definitions

Terms used in this chapter mean:

(1) "Appraisal or appraisal report," a written statement independently and impartially prepared by a qualified appraiser setting forth an opinion as to the market value as of a specific date, supported by the presentation and analysis of relevant market information;

(2) "Approximate equal value," a comparative estimate of value of the lands involved in an exchange which have readily apparent and substantially similar elements of value, including location, size, use, and physical characteristics;

(3) "Assembled land exchange," an exchange of state land for a package of multiple ownership parcels or nonstate land consolidated for purposes of one land exchange transaction;

(4) Cash equalization," the difference in value between the lands being exchanged that is paid in cash;

(5) "Commissioner," the commissioner of school and public lands;

(6) "Outstanding interest," rights or interest in property held by an entity other than a party to an exchange.

History

• Source: 26 SDR 99, effective February 3, 2000.
• General Authority: SDCL 5-3-7.
• Law Implemented: SDCL 5-3-7.

ARSD 04:01:08:02 Exchange agreements in public interest

In making land exchanges or assembled land exchanges under this chapter, the commissioner may consider whether the public interest is served through the consolidation of school and public lands and nonstate land patterns, or needed for urban or industrial expansion, or is consistent with land management planning objectives.

History

• Source: 26 SDR 99, effective February 3, 2000.
• General Authority: SDCL 5-3-7.
• Law Implemented: SDCL 5-3-7.

ARSD 04:01:08:03 Exchange agreements

For each land exchange or assembled land exchange made under this chapter, an exchange agreement with the approval of the commissioner is required. The agreement shall contain at least the following:

(1) Legal description of the land to be exchanged and approximate equal value of such land;

(2) Identification of each party involved in the exchange and status of the party's ownership or ability to provide title to the land;

(3) Any reservations and outstanding interest;

(4) Description of the appurtenant rights proposed to be exchanged or reserved including any authorized uses such as grants, permits, easements, or leases, and any known unauthorized uses such as covenants, restrictions, title defects, or encumbrances;

(5) Appraised value of the land;

(6) Cash equalization;

(7) Time schedule by which the exchange and payment of cash equalization must be made;

(8) Assignment of responsibility for performance of required functions and for costs associated with processing the exchange;

(9) Statement as to whether costs will be negotiated pursuant to § 4:01:08:05;

(10) A grant of permission by each party to physically examine the lands offered by the other party;

(11) Statement as to the manner in which documents of conveyance shall be exchanged, should the exchange proposal be successfully completed;

(12) Presence of hazardous material;

(13) Hold harmless clause;

(14) Agreement for cleanup responsibility of hazardous material; and

(15) Conveyance of acceptable title.

History

• Source: 26 SDR 99, effective February 3, 2000.
• General Authority: SDCL 5-3-7.
• Law Implemented: SDCL 5-3-7.

ARSD 04:01:08:04 Appraisals

For each land exchange, or assembled land exchange, including a conditional land exchange, an appraisal or appraisal report shall be required as follows:

(1) Tracts with an assessed value of $100,000 or less may be appraised by a realtor registered in this state, under SDCL chapter 36-21B;

(2) Tracts with an assessed value of $100,000 up to $250,000 shall be appraised by a licensed appraiser or a certified general appraiser;

(3) Tracts with an assessed value of $250,000 or greater shall be appraised by a certified general appraiser.

History

• Source: 26 SDR 99, effective February 3, 2000.
• General Authority: SDCL 5-3-7.
• Law Implemented: SDCL 5-3-7.

ARSD 04:01:08:05 Recovery of expenses of exchange preparation

In mutually beneficial cases, the commissioner may negotiate with the landowner to share the expenses incurred in the exchange of land preparation, such as the appraisal or appraisal report, cost and legal fees associated with deed preparation, conveyance of title, and exchange agreement preparation. However, the commissioner may charge the landowner for the costs incurred to obtain the appraisal or appraisal report of the land to be exchanged. In such event, the commissioner shall provide a copy of the cost of the appraisal to the landowner and request payment to be made within 30 days to the appraiser.

History

• Source: 26 SDR 99, effective February 3, 2000.
• General Authority: SDCL 5-3-7.
• Law Implemented: SDCL 5-3-7.

ARSD 04:01:08:06 Environmental analysis

In any exchange made pursuant to this chapter the commissioner may determine if an environmental analysis needs to be performed as a condition to the exchange. If the analysis indicates that remedial efforts are necessary, the commissioner may require the landowner to complete the remedial efforts prior to the exchange.

History

• Source: 26 SDR 99, effective February 3, 2000.
• General Authority: SDCL 5-3-7.
• Law Implemented: SDCL 5-3-7.

ARSD 04:01:08:07 Restrictions

In any exchange made pursuant to this chapter, the commissioner reserves the right to retain any interest that is needed to protect the public interest or shall otherwise restrict the use of the school land to be exchanged, as appropriate. The use or development of any land conveyed to out-of-state ownership is subject to any restriction imposed by either the conveyance documents or the laws and zoning ordinances of state and local governing bodies.

History

• Source: 26 SDR 99, effective February 3, 2000.
• General Authority: SDCL 5-3-7.
• Law Implemented: SDCL 5-3-7.

ARSD 04:01:08:08 Hazardous substances

The landowner shall notify the commissioner of any hazardous substances known to have been released, stored, or disposed of on the nonstate land to be exchanged prior to the ordering of the appraisal. If hazardous substances are known to be present on the nonstate land, the commissioner shall reach an agreement with the landowner regarding the responsibility for appropriate response action concerning the hazardous substances before completing the exchange.

History

• Source: 26 SDR 99, effective February 3, 2000.
• General Authority: SDCL 5-3-7.
• Law Implemented: SDCL 5-3-7.

ARSD 04:01:08:09 Withdrawal from exchange

Entering into any negotiation to exchange land does not legally bind either party to proceed with the processing of the land exchange or to consummate a proposed exchange, or to reimburse or pay damages to any party to a proposed land exchange that is not consummated or to anyone doing business with the party.

History

• Source: 26 SDR 99, effective February 3, 2000.
• General Authority: SDCL 5-3-7.
• Law Implemented: SDCL 5-3-7.

ARSD 04:01:08:10 Notice of exchange proposal

After entering into an agreement to initiate an exchange of land, the commissioner shall publish notice once a week for three consecutive weeks in newspapers of general circulation in each county in which the school land and nonstate land are located. At a minimum, the notice shall include the following:

(1) A description of the school and nonstate land being exchanged;

(2) An invitation to the public to submit written comments on or about the proposed exchange; and

(3) The deadline by which comments must be received, and the name, title, and address of the official to whom comments must be sent and from whom additional information may be obtained.

History

• Source: 26 SDR 99, effective February 3, 2000.
• General Authority: SDCL 5-3-7.
• Law Implemented: SDCL 5-3-7.

Chapter 04:01:09 Paleontology

ARSD 04:01:09:01 Definitions

Terms used in this chapter mean:

(1) "Commissioner," the commissioner of school and public lands;

(2) "Fossil," any remain, trace, or imprint of a plant or animal that has been preserved by natural processes in the earth's crust from some past geologic time;

(3) "Paleontological resources," any fossil resources, including both body and trace fossils, of all groups of organisms;

(4) "Paleontology," the study of life in past geologic times.

History

• Source: 27 SDR 93, effective March 25, 2001.
• General Authority: SDCL 5-1-16.
• Law Implemented: SDCL 5-1-16.

ARSD 04:01:09:02 Reconnaissance collecting

Reconnaissance collecting means the collecting of fossils from the surface which:

(1) Results in surface disturbance of less than two square meters of the earth;

(2) Involves picking up loose specimens on weathered rock surfaces;

(3) May involve the use of simple hand tools;

(4) Does not involve the use of power tools, explosives, or mechanized equipment of any kind; and

(5) Does not pose potential for significant disturbance of sites of ongoing scientific research and other important resources, including endangered species, cultural resources, archaeological resources, cave resources, wilderness, or areas of critical environmental concern.

History

• Source: 27 SDR 93, effective March 25, 2001.
• General Authority: SDCL 5-1-15, 5-1-16.
• Law Implemented: SDCL 5-1-16.

ARSD 04:01:09:03 Paleontological survey

An excavation permittee conducting a paleontological survey shall have experience with geological and paleontological field techniques. A paleontological survey action is the systematic scientific survey of some or all of the rock formations and other deposits and alluvia within certain boundaries to gather baseline data on fossil resources in the field.

History

• Source: 27 SDR 93, effective March 25, 2001.
• General Authority: SDCL 5-1-16(1)(4)(6).
• Law Implemented: SDCL 5-1-16(1)(4)(6).

ARSD 04:01:09:04 Activities which may be required of excavation permittees

The commissioner may require excavation permit holders to conduct any of the following activities:

(1) Document each site with a close-up photograph of the locality as well as a photograph of the general setting of the locality or topographic map markings identifying the location;

(2) Consult with a qualified paleontologist; and

(3) Conduct a paleontological survey.

History

• Source: 27 SDR 93, effective March 25, 2001.
• General Authority: SDCL 5-1-15, 5-1-16(4)(5).
• Law Implemented: SDCL 5-1-16(4)(5).

ARSD 04:01:09:05 Permitting

If a request for research on any paleontological resource is submitted, the commissioner shall determine whether or not a permit is required prior to or after the commencement of the research depending on the following conditions:

(1) The collection of a specimen may be authorized by the commissioner if specimens are in imminent danger of damage or loss through erosion, theft, or vandalism. Such a threat must be of such an immediate nature that the time involved in the normal permitting process will result in the loss of the specimen; and

(2) If the research activities involves the incidental collection of inconsequential fossils that are not central to the investigative study.

History

• Source: 27 SDR 93, effective March 25, 2001.
• General Authority: SDCL 5-1-15, 5-1-16(4)(5).
• Law Implemented: SDCL 5-1-16(4)(5).

ARSD 04:01:09:06 Types of permits and fees

The commissioner may issue exploration or excavation permits which are:

(1) An exploration permit allows the permittee to explore, locate, survey, acquire, collect, salvage, conserve, and restore paleontological resources provided that such collecting is reconnaissance collecting and results in surface disturbance of less than two square meters of the earth, picking up loose specimens on weathered rock surfaces, and may involve the use of simple hand tools. This does not include the use of power tools, explosives, or mechanized equipment of any kind. The exploration permit fee is $25; and

(2) An excavation permit allows the permittee to locate, survey, acquire, excavate, and operate paleontological sites and properties containing paleontological resources. The excavation permit fee is $250.

History

• Source: 27 SDR 93, effective March 25, 2001.
• General Authority: SDCL 5-1-15, 5-1-16.
• Law Implemented: SDCL 5-1-15, 5-1-16(6)(7).

ARSD 04:01:09:07 South Dakota paleontological permit application forms

The commissioner shall make available the following application form for completion by persons exploring or excavating for paleontological resources:

This application is for a permit that will entitle the person named on the permit to collect, for a period of one (1) year, fossils on land owned or leased by the State of South Dakota. The permittee shall abide by all of the provisions contained in SDCL chapters 1-19A, 1-20, and 5-1 and ARSD chapter 4:01:09.

MAIL COMPLETED APPLICATION TO:

Commissioner of School and Public Lands, Capitol Building, Pierre, South Dakota 57501

The following are to be enclosed with the application:

1. Copy of applicant's identification as stated in permit information;

2. Check or money order for the amount required for the permit desired payable to the Commissioner of School and Public Lands. PLEASE DO NOT SEND CASH .

Please check the type of permit desired:

_____ Exploration permit ($25.00)

_____ Excavation permit ($250.00)

Please complete the following:

Applicant's Name: _______________________________________________________

Organization or club, if any: _______________________________________________

Address: _______________________________________________________________

---

City State Zip

Telephone (including area code): ___________________________________________

Name of other individuals that would be helping the Applicant: _________________

---

---

Legal land description: ____________________________________________________

---

---

---

Date field work will begin ______________ Date field work to end _______________

I, the undersigned, affirm that I will abide by SDCL chapters 1-19A, 1-20, and 5-1 and ARSD 4:01:09 and will send all paleontological records and data associated with the paleontological resources to the Commissioner of School and Public Lands.

---

Signature Date

History

• Source: 27 SDR 93, effective March 25, 2001.
• General Authority: SDCL 5-1-15, 5-1-16(8).
• Law Implemented: SDCL 5-1-16(8).