STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 29, 1975

Mr. Jack Weiland
Commissioner
Public Utilities Commission
Capitol Building
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 75-135

The applicability of SDCL 49-34A-42 (Section 38 of Senate Bill 261) to the proposed shredder facility located near Aberdeen, South Dakota

Dear Mr. Weiland:

You have requested an opinion from this office as to the applicability of SDCL 49-34A-42 (Section 38 of Senate Bill 261) to the proposed shredder facility located near Aberdeen, South Dakota.

The factual situation presented is as follows:

During the fall of 1974, Northwestern Public Service Company requested permission to install underground cable into the general area of the proposed shredder facility. The facility is located in the West One-Half of Southeast One-Quarter of Section 8, Township 123 North, Range 63 West. On this same parcel of property, within several hundred feet, is located the County owned Northern Alcohol and Drug Referral Center. Although activities in the Center have changed over the years, it has been served with power by Northwestern Public Service since about 1925.

After some discussion, the County Commission on December 13, 1974 passed a motion allowing Northwestern Public Service Company to install a permanent underground cable. Cable was installed with the remainder to be placed when site plans were finalized.

The Commission subsequently reviewed the motion giving Northwestern Public Service permission to install cable for the Shredder Facility. New Commissioners had taken office in the interim with new views and different conclusions as to the intent of the original motion. On January 14, 1975 it was decided by the new Commissioners that the original motion should not stand and that bids would be taken.

On March 21, 1975 the Commission resolved to permit the contractor to choose the supplier for temporary electric service. Northwestern Public Service Company was chosen at that time and continues to presently serve the site.

Specifications were prepared and bids opened May 2, 1975. Both companies presented proposals with Northern Electric being low bidder. Upon review of the proposals, it was noted that Northern Electric had not submitted surety of any kind. The Commission then chose to reject both bids, one for lack of surety and the other for lack of a fuel adjustment clause which had not been specified.

Northern Electric has had its three phase over head line immediately in front of the new shredder facility for several years.

Based on the above facts the question presented is:

(1) Is it necessary for the Brown County Commissioners to receive proposals on electric service to the shredder site, (2) is it automatically Northwestern Public Service Company territory as of July 1, 1975, or (3) is the choice left to the consumer until territorial boundaries have been set?

SDCL 49-34A-42 provides:

49-34A-42. Electric utility's exclusive rights in assigned service area-Connecting facilities in another area.-Each electric utility shall have 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 and 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; provided, that 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.

On the basis of the facts available, it appears that there is little argument that Northwestern Public Service Company was providing electric service to the shredder location as of March 21, 1975. SDCL 49-34A-42 cited above would appear to make that fact determinative of the questions presented. Although the Public Utilities Commission has not yet had time to finally certify territories the Public Utilities Commission cannot do other than what the statutes allow. SDCL 49-34A-42 has the legal effect of making March 21, 1975 the date at which certain territorial rights are established. As of the effective date of this law, the rights of the utility serving the shredder location to continue service to that location became fixed.

The answer to your first question therefore is NO, to your second question YES, and to your third question NO!

Respectfully submitted,

William Janklow
Attorney General

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