When SD's Department of Environment and Natural Resources sends its Geological Survey Program out to drill exploratory bore holes for groundwater and geological investigation, and the chosen location is inside the public right-of-way of a township road, county road, state highway, or federal road, does DENR need to get permission first from the adjacent private landowner or from the road's governing unit of government?
Plain-English summary
SD's Department of Environment and Natural Resources (DENR) ran a Geological Survey Program responsible for investigating the state's geology and groundwater resources. The program needed to drill exploratory boreholes in lots of locations across the state. Drilling in private fields meant either negotiating with the landowner or, where the owner couldn't be located, waiting indefinitely. Drilling in public road rights-of-way was much more efficient because the ROW was already public land.
The Program had been doing this drilling for decades. Under a 1978 informal letter opinion from then-AG Bill Janklow, DENR took the position that it could drill in road ROWs without separate landowner permission, relying on SDCL 1-1-10 (state geologist's authority to enter property for surveys). The 1978 opinion was informal, statutes had been amended since, and Secretary Pirner wanted a formal AG opinion to confirm the program could continue operating that way.
The 2014 AG agreed. SDCL 1-1-10 authorized the state geologist (and by extension DENR's Geological Survey Program) to enter private property as needed to conduct statutorily authorized surveys. SDCL 45-2-4.2 was the statute authorizing the survey itself. Together they gave the Program legal authority to drill in road ROWs without seeking separate permission from:
- The private landowner whose property abutted the road
- The township, county, state, or federal entity that controlled the road
The reasoning was straightforward. SDCL 1-1-10 said the state geologist "shall be allowed to enter upon any land within the state" for the purpose of making the survey. Road ROWs sit on land. The plain language covered them. The 1978 informal opinion had said the same thing, and although the underlying survey-authorization statutes had been renumbered or replaced, the core authority (state geologist enters land, conducts survey, no separate permission) remained the same.
SDCL 45-2-4.2 was the modern version of the survey-authorization piece. It said "the state geologist shall continue the making of the actual geological survey of the lands, and earth, and the area beneath the surface of the lands of this state as provided by this chapter." That language continued the Legislature's directive to conduct the survey. SDCL 1-1-10 gave the access right needed to carry it out.
The opinion left the Program's existing courtesy practices alone. The 2014 opinion confirmed legal authority, but DENR's stated practice was already to work with adjacent landowners "to avoid negative impact that might be caused in blocking approaches, field entrances, etc." That courtesy continued; it just wasn't legally required.
Currency note
This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. SDCL 1-1-10 and 45-2-4.2 should be checked directly. The 1978 informal opinion has been superseded by intervening statutory amendments to the survey provisions, even though the AG's bottom-line conclusion (right of access without separate permission) was reaffirmed in 2014. A more recent change to either statute could alter the analysis.
What the opinion meant at the time
For DENR's Geological Survey Program field crews in 2014, the opinion confirmed they could continue the long-standing operating pattern. Crews could plan drilling locations in road ROWs, deploy equipment, and conduct the work without separate landowner-permission paperwork or township/county approval letters. The 1978 informal authority was now backed by a formal 2014 opinion.
For SD county highway superintendents and township supervisors, the opinion gave clear notice that DENR could enter county and township ROWs without seeking permission from the county or township. Local highway officials could not block the work on the theory that they controlled the ROW. The state geologist's statutory authority preempted that.
For private landowners whose property abutted public roads, the opinion meant they did not need to be consulted before DENR drilled in the ROW. They were welcome to coordinate informally with DENR (the program's stated courtesy practice), but they did not have a statutory veto. If DENR's drilling created a traffic safety problem (blocking a field entrance during harvest, for example), the landowner's recourse was practical coordination, not legal blocking.
For SD DOT engineers and state highway maintenance staff, the opinion clarified that DENR did not need a DOT approach or work permit to drill in state highway ROW. That removed an administrative step from a multi-agency process.
For groundwater investigators in private consulting practice, the opinion did not extend to them. The authority granted by SDCL 1-1-10 is specific to the state geologist. Private well drillers and consultants would still need landowner permission and applicable permits.
Common questions
Q: Does this opinion apply to private drilling companies?
A: No. SDCL 1-1-10 granted the authority specifically to the state geologist and the state-run Geological Survey Program. Private drilling companies need landowner permission and applicable permits.
Q: Does DENR have to compensate the landowner for any damage?
A: The opinion does not address damages. It addresses access. If DENR damages a fence, crops, or other private property during drilling, the general rules about state-actor liability would apply. Coordination in advance, which DENR practiced as a courtesy, usually prevents the issue.
Q: Can DENR drill in a federally-owned road ROW (interstate, US highway)?
A: The opinion answers yes for state law purposes. Federal cooperation may be needed for federally-administered highway ROW. SDCL 1-1-10 grants the access right as a matter of SD law; federal authorities may have their own concurrent control over federal-aid highways.
Q: What about tribal land?
A: The opinion does not address tribal land. Tribal sovereignty raises separate questions outside the scope of an opinion about state-law access. DENR would need to engage with the relevant tribal authorities directly.
Q: Can the state geologist enter actual private property (not in a ROW)?
A: Under SDCL 1-1-10 as in effect in 2014, yes, for the purpose of making the geological survey. The 2014 opinion notes that the language authorizes entry on "any land within the state." Reasonable notice and courtesy were the practice, but not a legal prerequisite.
Q: What if the county or township passes an ordinance restricting ROW use?
A: Local ordinance cannot override a state statute granting access. SDCL 1-1-10 is a state-law grant of authority. Counties and townships could not lawfully require permission for state geologist work the Legislature had authorized.
Q: Does this give DENR authority to drill production wells?
A: No. The authority is for the survey, not for production. SDCL 45-2-4.2 covers "the actual geological survey of the lands, and earth, and the area beneath the surface of the lands." Production wells, monitoring wells used for purposes other than the survey, and other water-resource development would need separate statutory authority and permitting.
Background and statutory framework
The state geologist position and the geological survey of SD have existed in various forms since the 1800s. The Geological Survey Program is part of DENR (now a successor agency in the SD government structure; DENR was the responsible entity in 2014). The program's work supports water-resource planning, mineral identification, mining oversight, and a range of public safety and environmental functions.
SDCL 1-1-10 is the statutory grant of access authority. The provision in effect in 2014 read in relevant part to authorize the state geologist to enter upon land in the state for purposes of making the survey. The 1978 informal opinion by then-AG Janklow relied on the same access authority, although the underlying survey statutes have since been amended.
SDCL 45-2-4.2 is the statute authorizing the geological survey itself. The text directs that "the state geologist shall continue the making of the actual geological survey of the lands, and earth, and the area beneath the surface of the lands of this state as provided by this chapter." That continuing directive is what the access authority in SDCL 1-1-10 serves.
The 1978 informal opinion (which the 2014 opinion expressly adopted in conclusion) had relied on SDCL 1-1-10 plus SDCL 45-2-1 (general survey authority) and SDCL 46-3-2 (groundwater survey authority). Some of those underlying provisions had been amended or repealed by 2014, but SDCL 45-2-4.2 remained as the continuing survey-authorization statute and SDCL 1-1-10 remained as the access-authority statute. The structure of the analysis was unchanged.
The opinion's holding fits SD's broader framework for state-agency entry on private and public land for statutory purposes. The Department of Game, Fish and Parks has parallel access authority for wildlife surveys and conservation work. SD DOT has access authority for highway-related surveys. SDCL 1-1-10 fits this pattern: a specific state-agency function gets a specific access grant.
The opinion does not address compensation for damage, the contours of "reasonable" entry, or the relationship between SDCL 1-1-10 and the takings clauses of the federal and SD constitutions. Those questions would arise only if a landowner objected to specific DENR conduct and sought compensation or injunctive relief, which the record in 2014 did not present.
The practical effect of the opinion was to confirm that DENR's day-to-day operations could continue without administrative bottleneck. The Program drilled at hundreds of locations across SD each year. Requiring case-by-case landowner or county permission would have ground the work to a halt.
Citations and references
Statutes:
- SDCL 1-1-10 (state geologist access authority)
- SDCL 45-2-4.2 (continuation of geological survey)
- SDCL 45-2-1 (referenced as prior-version survey authority)
- SDCL 46-3-2 (referenced as prior-version groundwater survey authority)
Cases:
- None cited.
Prior AG opinions:
- AG Janklow informal opinion letter, May 9, 1978 (same conclusion under prior statutory versions, expressly adopted by the 2014 opinion)
Source
Original opinion text
OFFICIAL OPINION NO. 14-02
May 5, 2014
Steven M. Pirner PE, Secretary
Department of Environment and Natural Resources
523 E. Capitol
Pierre, SD 57501-3182
RE: Regarding Use of Road Right-of-Ways by the Geological Survey Program
Dear Secretary Pirner,
You have requested an official opinion from this office:
QUESTION: Whether permission of the adjacent landowner or unit of government is required for DENR's Geological Survey Program to conduct drilling and other related work as provided in SDCL 45-2-4.2 within legal rights-of-way of township, county, state, and federal roads.
ANSWER: Additional permission is not required because SDCL 1-1-10 provides statutory authority for DENR and the State Geologist to conduct the geological survey authorized by SDCL 45-2-4.2.
FACTS: You have provided the following factual statement:
The Geological Survey Program, DENR, has a long standing record of performing drilling activities, relating to the investigation of subsurface geology and ground water resources, in the right-of-way along the roads in South Dakota. By using the public rights-of-way, the Geological Survey Program is able to access needed areas throughout the state without impacting productive private property or otherwise inconveniencing private property owners. When relevant, the Geological Survey Program works with the adjacent land owners to avoid negative impact that might be caused in blocking approaches, field entrances, etc.
While the program is sensitive to the adjacent landowner's obvious interest, based on SDCL 1-1-10, and as further described in an informal Attorney General's Office opinion dated May 9, 1978, the Program routinely proceeds without permission of the adjacent landowner — in fact, due to absentee owners and other factors, obtaining permission is often impractical and contrary to the efficient pursuit of our work. Similarly, obtaining permission from other units of government, such as counties or townships, is often impractical, as field work schedules must be flexible given the uncertainties that can arise in geological drilling and related work.
IN RE: QUESTION:
As you noted, on May 9, 1978, Attorney General Janklow issued an attorney letter opinion on this same issue. That informal opinion indicated that DENR had the authority to conduct drilling activities within the right-of-way under the authority of SDCL 1-1-10, coupled with the authority to conduct a geological survey provided by SDCL 45-2-1 and a groundwater survey authorized by SDCL 46-3-2. Other than some changes in the statutory authority to conduct the actual surveys, nothing in the legal basis of the 1978 informal opinion has changed, and I agree with the conclusion reached by Attorney General Janklow's 1978 informal opinion.
A plain reading of the underlined portion of [SDCL 1-1-10] clearly authorizes the state geologist to enter private property without permission in order to conduct statutorily authorized surveys. This would include rights-of-way overlying private property. Although the survey statutes relied upon in 1978 have been repealed by the Legislature, SDCL 45-2-4.2 continues to exist and provides "the state geologist shall continue the making of the actual geological survey of the lands, and earth, and the area beneath the surface of the lands of this state as provided by this chapter."
Therefore, it is my opinion that SDCL 1-1-10 and SDCL 45-2-4.2 authorize the state geologist to utilize the rights-of-way without permission for the purposes of the making of the geological survey.
Very truly yours,
Marty J. Jackley
ATTORNEY GENERAL
MJJ/lde