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26.481.17 101st Legislative Session 71
2026 South Dakota Legislature
Senate Bill 71
ENROLLED
AN ACT
ENTITLED An Act to authorize the assumption of certain responsibilities and the
waiver of sovereign immunity in connection with certain actions under
federal environmental law.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That a NEW SECTION be added to chapter 1-44:
The Department of Transportation may, by agreement with the federal government
pursuant to 23 U.S.C. §§ 326 and 327, assume all or part of the responsibilities of the
federal government under the National Environmental Policy Act, as set forth under 42
U.S.C. §§ 4321 to 4370, inclusive, for environmental review, consultation, or other actions
required with respect to highway projects within this state.
Section 2. That a NEW SECTION be added to chapter 1-44:
In cases that involve compliance, discharge, or enforcement of responsibilities
assumed by the Department of Transportation under section 1 of this Act, this state waives
sovereign immunity from suit in federal court provided under the Eleventh Amendment to
the Constitution of the United States.
Section 3. That § 31-2-38 be AMENDED:
31-2-38. Notwithstanding any limitation in § 31-2-13.2 or 31-2-14.2, the State of
South Dakota shall pay to any successful litigant in an action brought pursuant to this
chapter or with respect to any highway or public transportation project pursuant to section
1 of this Act, the amount of damages awarded and the amount of attorney fees and costs
assessed against this state, out of the state highway fund from all the moneys levied and
collected by the state by general state taxation for state highway purposes, or
appropriated for state highway purposes.
26.481.17 2 71
SB71 ENROLLED
An Act to authorize the assumption of certain responsibilities and the waiver of sovereign
immunity in connection with certain actions under federal environmental law.
I certify that the attached Act originated in
the:
Senate as Bill No. 71
Secretary of the Senate
President of the Senate
Attest:
Secretary of the Senate
Speaker of the House
Attest:
Chief Clerk of the House
Senate Bill No. 71
File No. ____
Chapter No. ______
Received at this Executive Office
this _____ day of _____________,
2026 at ____________M.
By
for the Governor
The attached Act is hereby
approved this ________ day of
______________, A.D., 2026
Governor
STATE OF SOUTH DAKOTA,
ss.
Office of the Secretary of State
Filed ____________, 2026
at _________ o'clock __M.
Secretary of State
By
Asst. Secretary of State