Emotional Support Animal (ESA) Letters in Spearfish, SD

A Black Hills town where half the households rent

Spearfish has 2,987 renting households out of 5,932 occupied homes, 50.4 percent on the 2020–2024 American Community Survey five-year estimate. That is nineteen points above the 31.4 percent statewide figure and fourth of South Dakota’s twenty largest cities, behind Vermillion, Brookings and Box Elder.

Median gross rent is $963, a little over the $946 state median and a long way under Box Elder’s $1,491 twenty minutes down the interstate. The 2024 Census estimate puts Spearfish at 13,803, eighty-four people behind Box Elder and tenth in the state.

Black Hills State University, seasonal tourism work and a steady in-migration keep the rental market busy and the leases short. A tenant here who needs an assistance animal will find a South Dakota statute that appears to be exactly on point, and it is not.

The section that looks written for you

SDCL 20-13-23.4, catchline “Right to keep guide dog in rented or leased residence”:

“No landlord may prohibit by lease or otherwise the keeping of a service animal by a person who is totally or partially physically disabled, totally or partially blind, or totally or partially deaf in an apartment or other rented or leased residential property. A violation of this section is a Class 2 misdemeanor.”

A landlord may not prohibit the animal. There is a criminal penalty attached. It is specific to rented residential property. Everything about it reads like the provision a South Dakota tenant needs.

Now read the list of people it covers. Physically disabled. Blind. Deaf. That is the whole enumeration, and it is a closed list, not an illustration.

Psychiatric disability is not in it. Mental disability is not in it.

Why that is not an oversight

The usual response to a gap like this is that the statute is old and nobody has been back to it. That response is available for a lot of provisions. It is not available for this one, and the reason sits two sections earlier in the same chapter.

SDCL 20-13-23.2 is the parallel section for public accommodations: the shops, restaurants, hotels and other places listed in SDCL 20-13-23.1. Its list of covered people reads:

“Any person who is totally or partially physically disabled, totally or partially blind, totally or partially deaf, or has a psychiatric disability or mental disability may be accompanied by a service animal, especially trained for the purpose…”

Those last words were added by SL 2020, ch 71, § 1. In 2020 the South Dakota legislature looked at this exact question (whether a psychiatric or mental disability belongs in an assistance-animal statute), and answered yes, for public places.

It did not make the same amendment to SDCL 20-13-23.4. That section’s source line ends at SL 1995, ch 118, § 2. The legislature reached into one section of a two-section pair and left the other where it was.

Whatever the reason, the consequence for a Spearfish tenant is the same: 20-13-23.4 is not your section, and asserting it invites a landlord’s adviser to read the list aloud.

Nor can SDCL 43-32-33 rescue it

The other move a tenant makes here is to pick up the definition in SDCL 43-32-33, which does say that “service animal” refers to any animal serving a role “as an emotional support animal” — and staple it to 20-13-23.4.

That fails on the definition’s own opening words: “For the purposes of §§ 43-32-34 to 43-32-36, inclusive.” Those are the rental documentation sections in chapter 43-32. The definition does not reach chapter 20-13 at all.

So two provisions that each look like they help, and neither does. Better to know that before the conversation than during it.

What actually applies

42 U.S.C. § 3604(f)(3)(B) (the federal Fair Housing Act’s reasonable-accommodation duty) applies to Spearfish rentals on its own terms and is not narrowed by anything in the South Dakota code. For most tenants here it is the load-bearing provision.

SDCL 20-13-23.7 is the state duty: “for purposes of employment, public accommodation, public service, and education or housing, good faith efforts shall be made to reasonably accommodate the disabled person unless the accommodation would impose undue hardship.” It names no animal and no category of disability, which is exactly why it works where 20-13-23.4 does not. SDCL 20-13-35.1 backs it with punitive damages.

SDCL 20-13-20(2) takes the charges off: an unfair or discriminatory practice to discriminate because of disability in “the terms, conditions, or privileges” of a rental.

And SDCL 43-32-34 to 43-32-36 (where 43-32-33’s definition does apply), govern the documentation: what the landlord may require, what it must say, and what happens if it is knowingly fraudulent.

A note on the misdemeanour

SDCL 20-13-23.4’s Class 2 misdemeanor penalty is real, and it belongs to the people the section lists. A tenant with a trained guide dog or hearing dog in a Spearfish apartment has a criminal provision behind them that an emotional support animal’s handler does not.

That is worth saying plainly rather than blurring, because the difference is the whole reason this page exists. Your position is a civil accommodation claim under federal law and SDCL 20-13-23.7, and it is a good one. It is simply not the one with a criminal penalty attached.

The money and the clock

SDCL 43-32-6.1 caps everything the landlord holds at one month’s rent “however denominated,” which at Spearfish’s $963 median is a little under a thousand dollars. SDCL 43-32-24 puts the balance, or a written explanation, twenty-one days after the tenancy closes and your address is in their hands, and a lessor who misses that forfeits the right to keep back any of it.

SDCL 20-13-31 gives 180 days from the refusal, with no discovery language. On a nine-month academic lease or a seasonal tenancy that window frequently closes after you have left the Hills, so date the request and date the refusal in writing at the time.

What to do with a landlord who quotes 20-13-23.4

They may quote it in your favour, having read only the catchline, and then withdraw it when somebody checks.

The better course is not to rely on it at any point. Lead with the federal duty and SDCL 20-13-23.7, and if 20-13-23.4 comes up, say plainly that it covers physical, blind and deaf tenants and that your position does not depend on it.

That costs nothing. What costs something is building a request on a section whose list of covered people can be read aloud in five seconds, and then having to rebuild it after somebody does.

What has to be established

Start with a clinician you already see, including through the university if that is a real clinical relationship. The friction here is specific: campus counselling runs on semester waitlists and is built for short-course work rather than for writing disability determinations, and the Northern Hills has very little private psychiatric capacity, for many Spearfish residents the nearest is Rapid City, with waits of months.

Where that route is closed, a licensed evaluation is the same examination arranged on purpose: somebody licensed decides whether a disability exists and whether this animal answers it, then records the conclusion or explains why they will not. Both endings are real, and a provider whose answer is fixed in advance is the operation SDCL 43-32-35 excludes by name.

In a state whose legislature added your disability to one section and not the other, the document that establishes the disability is not paperwork around the case. It is the case.