South Dakota Conservation Districts Continuing Education

1. South Dakota Conservation DistrictsContinuing Education Module 5: Legal Responsibilities of a Supervisor

2. Discussion questions: • What actions in history acted to create the conservation district system? • What legislation directs the activities of a conservation district? • What is the role of the conservation district supervisor to assure compliance with conservation laws? • What are the key legal responsibilities of a conservation district supervisor?

3. Historical and Legal Precedents • In 1935, Congress approved the establishment of the Soil Conservation Service (SCS). The Act required the states receiving its benefits to enact legislation providing for the prevention of soil erosion. The U.S. Department of Agriculture consequently prepared a standard Conservation District Act for the states to consider. • Thus the idea of conservation districts was born and district law was passed in South Dakota in 1937.

4. Historical and Legal Precedents • Three chapters of state law directly affect conservation districts. These are SDCL 38‑7 (Division of Resource Conservation and Forestry), 38‑8 (Conservation Districts) and 38‑8A (Soil Erosion and Sediment Damage Control). • It was not until 1982 that all areas of the state were covered by conservation districts. • These districts were developed as “Soil Conservation Districts”, later expanded to “Soil & Water Conservation Districts, then in 1968 changed to “Conservation Districts” to represent their wide range of responsibilities.

5. Legal Responsibilities • South Dakota’s conservation districts are legal subdivisions of state government. (38-7-2(3) and 38-8-15) • Districts can sue or be sued and execute contracts. Districts can set up offices, operate or sell property, accept funds and manage federal grant programs.

6. Legal Responsibilities Districts should protect the board of supervisors and others entrusted with funds through surety bonds and insurance. (SDCL 38‑8‑48) Districts are required to keep records, hold public meetings, and carry out duties consistent with applicable state operation and meeting laws - even if their funds are self generated. Any supervisor of a conservation district may be removed by the State Conservation Commission upon notice and hearing, for neglect of duty or malfeasance (wrongdoing or misconduct) in office, but for no other reason.

7. Supervisor Elections and Appointments • SDCL 38‑8‑39 through 38‑8‑44 require that supervisors represent certain segments of the public, as follows: • Three supervisors shall be rural landowners or occupiers; • One supervisor shall be a resident of an urban area (municipality as defined in SDCL 9‑2‑1 and any unincorporated municipality that is not prohibited from incorporation by SDCL 9‑3‑1." ); and • One supervisor shall be a taxpayer of real property. • These five supervisors are to reside within the district and are to be elected at large at a general election. All voters eligible to vote in a general election can vote on all supervisors.

8. Supervisor Elections and Appointments • The Conservation commission shall keep a record of supervisors elected in each district, appointments to fill vacancies, and the expiration date of each supervisor's term of office. • The commission shall provide nominating petitions for district supervisors to district offices as needed by April 1 of the general election year (usually sent in January). • The commission shall provide newly elected supervisors with an oath of office form.

9. Supervisor Elections and Appointments • SDCL 38‑8‑39 requires districts to give legal notice, before any general election, of all positions for which nominations may be filed. The last publication of the notice must be accomplished between June 10 and June 15 of the election year. Completed petitions must be filed by July 1. • Any person who has duly filed a valid nominating petition (signed by twenty-five or more voters in the district) for a supervisor's position, and is unopposed by other candidates, is automatically elected and certified to fill the office.

10. Supervisor Elections and Appointments • Supervisors serve a four‑year term, beginning on January 1st following the election. However, when a supervisor's position becomes vacant during the first two years of a four‑year term, the board of supervisors can appoint someone to fill the position until the next general election, at which time a supervisor is elected for a two‑year term. • If a vacancy occurs during the last two years of a four‑year term, an appointment can be made to fill the position until the next general election, at which time a supervisor is elected for a full four‑year term. The purpose is to maintain the established rotation of supervisor elections.

11. Supervisor Elections and Appointments An appointed supervisor cannot be automatically carried over without going through the election process. To continue to serve without at least a nomination by petition, he must be reappointed by the board. An elected supervisor is in a different position. Unless the supervisor has forfeited the office by virtue of death, resignation or removal, he holds office until a successor is "elected and qualified" (Attorney General Opinion No. 70‑39), and until the term of the new supervisor begins on January 1. “The failure of an elected candidate...to petition for reelection does not of itself automatically cause such office to be vacated.”

12. Supervisor Elections and Appointments A. G. Opinion No. 70‑39 (cont.) “The responsibility to circulate petitions and timely file the same consistent with SDCL 38‑8‑39 rests with any individual desiring to seek such public office. An incumbent in such office who does not circulate and file a petition for such office runs a risk of finding another citizen has circulated and filed a petition and is eligible as a successor in office. However, in the absence of the circulation and timely filing of such petition by any person, the incumbent will remain in office until his successor is elected and qualified at the next general election."

13. Legal Responsibilities • At the first meeting in January of each year the supervisors of a conservation district shall designate a chairman, vice-chairman, a secretary and a treasurer, or a secretary-treasurer. The treasurer, or secretary-treasurer, if combined, need not be a member of the board of supervisors. • A majority of the supervisors (3 of 5) shall constitute a quorum and the concurrence of a majority in any matter within their duties shall be required for its determination. (In other words, if only three supervisors are present a motion must pass unanimously)

14. Legal Responsibilities • All meetings and hearings of the board of supervisors shall be open to the public and publicized • Supervisors may hire employees. • Supervisors may call upon the state attorney general and local state's attorney for legal services. • Supervisors may delegate to their officers, to one or more supervisors, or to one or more employees such powers and duties as they may deem proper and consistent with this chapter.

15. Legal Responsibilities • Supervisors: • may provide surety bonds for all employees and officers entrusted with funds or property; • shall keep a full and accurate record of all proceedings, resolutions and orders issued or adopted; and, • within sixty days of the close of the district's fiscal year, shall produce a financial report and report of principal activities. The reports shall be kept at the both the Division of Resource Conservation and Forestry and the district.

16. Legal Responsibilities • Districts must hold public meetings and may solicit legal assistance from the attorney general’s office to carry out activities of the district. • Districts work directly with the state Department of Agriculture, Division of Resource Conservation and Forestry, the Conservation Commission and resource users to carry out the duties of the district.

17. Legal Responsibilities • Districts are responsible to: • Implement the provisions of the Soil Erosion and Sediment Damage Control Act (SDCL 38‑8A), including the blowing dust provisions. • Seek assistance from the Division of Conservation and State's Attorney as needed. • Work with counties to implement SDCL 31‑12‑44 & 45, and with townships to implement SDCL‑31‑13 ‑57 & 58 in addressing erosion damages to local roads.

18. Functions & Powers Each conservation district is a governmental subdivision of the state as in South Dakota Codified Law (SDCL) Chapter 38-8-15and has and shall exercise the following functions, powers, and duties to: Employ, subject to available funds, clerical and staff personnel, including legal staff; Conduct surveys, investigations, and research relating to soil erosion, floodwater, non-point water pollution, flood control, water pollution, sediment damage, and watershed development;

19. Functions & Powers(cont’d) • Devise and implement measures for the prevention of soil erosion, floodwater and sediment damages, non-point water pollution, and for the conservation, development, utilization and disposal of water on state or private lands with the consent of the land occupier. • Construct, improve, operate, and maintain any structures considered necessary or convenient for the performance of any operation authorized by this part, and acquire property, both real and personal, through purchase, or otherwise, and maintain, improve, and administer such property consistent with the purposes of this part;

20. Functions & Powers (cont’d) • Enter into contracts or agreements in the name of the district, and sue and be sued; • Receive funds from any federal or state agency or from any county, city, or other political subdivision within the state or from any private source; • Annually submit to the commission on or before January 30, of each year, a copy of the minutes of each district meeting, a copy of its annual work plan, and an accounting of the district's financial affairs. • Do all other things necessary or convenient for the efficient and effective administration of the district.

21. Soil Erosion and Sediment Damage Control • Complaints about damaging soil erosion fall under SDCL 38-8A. While the law is not a strong regulatory act, it has helped districts solve many erosion problems in a constructive way. • The law provides: 1) a way for people to seek some action when they are adversely affected by erosion, without the necessity of going to court. An affected party retains the right to sue under the tort claims law, Chapter 21, if a satisfactory solution cannot be found under Chapter 38-8A.

22. Soil Erosion and Sediment Damage Control • Conservation districts have no legal authority to establish ordinances, only county and local governments have that. • However, conservation districts, by state law, must establish soil erosion standards. By law, the county must enforce these standards when they issue permits within the county; thereby, creating a “symbiotic” relationship between the county and the conservation district.

23. Soil Erosion and Sediment Damage Control • Additionally the law provides: • 2) local control and local solutions for resource problems. State agencies cannot enforce actions on a complaint, unless the "land-disturbing" activities are carried out under contract with an agency of the state. • 3) a conservation district can seek injunctive relief in a circuit court to enforce the provisions of the law.

24. Soil Erosion and Sediment Damage Control • The district has two months from receipt of a complaint to: • determine if the district erosion standards are being violated, • determine if the person signing the complaint is adversely affected, and • advise the petitioner of the boards’ disposition of his complaint. • The land disturber has up to six months to develop an erosion and sediment control plan.

25. Soil Erosion and Sediment Damage Control • Upon approval by the district board, the disturber then has up to six months to implement the plan. The district has authority to grant a variance for additional time if six months is not long enough for a complex implementation project. • Emergency situations can force land treatments as quickly as three days if ordered by the county commissioners.

26. Support Material • This Manual is dedicated to making the task of the supervisor easier. Hopefully, it will provide, in one place, most of the basic knowledge and guidance a supervisor needs to efficiently implement a sound and effective conservation program in the district.

27. Summary Conservation districts are legal subdivisions of state government with additional powers including: The right to sue and be sued Execute contracts Make rules and set regulations Set up offices Operate or sell property Accept funds Manage federal grant programs Hold public meetings

28. Summary • District law was passed in South Dakota in 1937 • 1982 that all areas of the state were covered by conservation districts • Districts are required to keep records, hold public meetings • Supervisor may be removed for neglect of duty or malfeasance

29. Summary • Three supervisors are rural landowners or occupiers; • One supervisor is an urban resident • One supervisor is a taxpayer of real property • Districts must give legal notice, before any general election, of all positions for which nominations may be filed • Supervisors serve a four‑year term (two years if filling a vacancy)

30. Summary • Appointed supervisor must be at least reappointed by the board (if not going through election process). • Elected supervisor (unless forfeited by death, resignation or removal) holds office until a successor is elected

31. Summary Each conservation district has the power and duties to: • Employ staff subject to available funds; • Investigate soil erosion, floodwater, water pollution, sediment damage, and watershed development; • Implement measures for the prevention of soil erosion, • Construct structures and acquire property, both real and personal necessary or convenient to fulfill their responsibilities

32. Review Questions What actions in history acted to create the conservation district system? What legislation directs the activities of a conservation district? What is the role of the conservation district supervisor to assure compliance with conservation laws? What are the key legal responsibilities of a conservation district supervisor?