May 23, 1979
The Honorable Patricia E. Kenner
State Representative
109 San Marco
Rapid City, South Dakota 57701
OFFICIAL OPINION NO. 78-21
Definition of public utility in "lifeline" initiative
Dear Representative Kenner:
You have requested an opinion from this office on the following question:
QUESTION:
Is a rural electric cooperative included within the jurisdiction and purview of the Lifeline Rate Reform/Energy Conservation Act initiative petition?
Senate Joint Resolution No.9 contains the text of the "Lifeline" initiative. Section 4 of Senate Joint Resolution No.9 states:
This Act is applicable to all utilities as defined in SDCL 49-34A-I(l2).
SDCL 49-34A-I(I2) defines public utility as being:
"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; provided, however, the term shall 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 co-operative as defined in § 47-2 I -I, for the purposes of §§ 49-34A-2 to 49-34A-4, inclusive, 49-34A-6 to 49-34A-41, inclusive, and 49-34A-62;
In my opinion, the above-cited statute excludes rural electric cooperatives from the "Lifeline" initiative definition of public utility. The definition of public utility in the above-cited statute specifically excludes rural electric cooperatives for certain purposes. To argue that the areas in which rural electric cooperatives are regulated under 49-34A are also applicable to possible regulatory action under the "Lifeline" initiative, does not appear in my judgment to be an appropriate argument. The provisions of section 4 of the "Lifeline" initiative focus on the definitional aspects of the term "public utility." That definition excludes rural electric cooperatives as defined in 47-21-1 for certain purposes. The fact that rural electric cooperatives are regulated for some purposes under Chapter 49-34A does not, in my opinion, however, mean that they are thereby included in the definition of "public utilities" in 49-34A-I(12) so as to be subject to the "Lifeline" initiative definition of "public utility" in section 4.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:DOC:jo
