South Dakota Conservation Districts Continuing Education Module 5: Legal Responsibilities of a Supervisor

South Dakota Conservation South Dakota Conservation DistrictsDistricts

Continuing EducationContinuing Education

Module 5:Module 5:Legal Responsibilities of a Legal Responsibilities of a

SupervisorSupervisor

Discussion questions:Discussion questions:

What actions in history acted to create the What actions in history acted to create the conservation district system?conservation district system?

What legislation directs the activities of a What legislation directs the activities of a conservation district?conservation district?

What is the role of the conservation district What is the role of the conservation district supervisor to assure compliance with supervisor to assure compliance with conservation laws?conservation laws?

What are the key legal responsibilities of a What are the key legal responsibilities of a conservation district supervisor?conservation district supervisor?

Historical and Legal PrecedentsHistorical and Legal Precedents In 1935, Congress approved the establishment of In 1935, Congress approved the establishment of

the Soil Conservation Service (SCS). The Act the Soil Conservation Service (SCS). The Act required the states receiving its benefits to enact required the states receiving its benefits to enact legislation providing for the prevention of soil legislation providing for the prevention of soil erosion. The U.S. Department of Agriculture erosion. The U.S. Department of Agriculture consequently prepared a standard Conservation consequently prepared a standard Conservation District Act for the states to consider. District Act for the states to consider.

Thus the idea of conservation districts was born Thus the idea of conservation districts was born and district law was passed in South Dakota in and district law was passed in South Dakota in 1937. 1937.

Historical and Legal PrecedentsHistorical and Legal Precedents Three chapters of state law directly affect Three chapters of state law directly affect

conservation districts. These are SDCL 38‑7 conservation districts. These are SDCL 38‑7 (Division of Resource Conservation and Forestry), (Division of Resource Conservation and Forestry), 38‑8 (Conservation Districts) and 38‑8A (Soil 38‑8 (Conservation Districts) and 38‑8A (Soil Erosion and Sediment Damage Control). Erosion and Sediment Damage Control).

It was not until 1982 that all areas of the state It was not until 1982 that all areas of the state were covered by conservation districts. were covered by conservation districts.

These districts were developed as “Soil These districts were developed as “Soil Conservation Districts”, later expanded to “Soil & Conservation Districts”, later expanded to “Soil & Water Conservation Districts, then in 1968 Water Conservation Districts, then in 1968 changed to “Conservation Districts” to represent changed to “Conservation Districts” to represent their wide range of responsibilities.their wide range of responsibilities.

Legal ResponsibilitiesLegal Responsibilities

South Dakota’s conservation districts are South Dakota’s conservation districts are legal subdivisions of state government. (38-legal subdivisions of state government. (38-7-2(3) and 38-8-15)7-2(3) and 38-8-15)

Districts can sue or be sued and execute Districts can sue or be sued and execute contracts. Districts can set up offices, contracts. Districts can set up offices, operate or sell property, accept funds and operate or sell property, accept funds and manage federal grant programs. manage federal grant programs.


Districts should protect the board of supervisors Districts should protect the board of supervisors and others entrusted with funds through surety and others entrusted with funds through surety bonds and insurance. (SDCL 38‑8‑48)bonds and insurance. (SDCL 38‑8‑48)

Districts are required to keep records, hold Districts are required to keep records, hold public meetings, and carry out duties consistent public meetings, and carry out duties consistent with applicable state operation and meeting laws with applicable state operation and meeting laws - even if their funds are self generated. - even if their funds are self generated.

Any supervisor of a conservation district may be Any supervisor of a conservation district may be removed by the State Conservation Commission removed by the State Conservation Commission upon notice and hearing, for neglect of duty or upon notice and hearing, for neglect of duty or malfeasance (wrongdoing or misconduct) in malfeasance (wrongdoing or misconduct) in office, but for no other reason. office, but for no other reason.

Supervisor Elections and AppointmentsSupervisor Elections and Appointments SDCL 38‑8‑39 through 38‑8‑44 require that SDCL 38‑8‑39 through 38‑8‑44 require that

supervisors represent certain segments of the public, supervisors represent certain segments of the public, as follows:as follows: Three supervisors shall be rural landowners or Three supervisors shall be rural landowners or

occupiers;occupiers; One supervisor shall be a resident of an urban area One supervisor shall be a resident of an urban area

(municipality as defined in SDCL 9‑2‑1 and any (municipality as defined in SDCL 9‑2‑1 and any unincorporated municipality that is not prohibited from unincorporated municipality that is not prohibited from incorporation by SDCL 9‑3‑1." ); andincorporation by SDCL 9‑3‑1." ); and

One supervisor shall be a taxpayer of real property.One supervisor shall be a taxpayer of real property. These five supervisors are to reside within the district These five supervisors are to reside within the district

and are to be elected at large at a general election. and are to be elected at large at a general election. All voters eligible to vote in a general election can All voters eligible to vote in a general election can vote on all supervisors.vote on all supervisors.

Supervisor Elections and AppointmentsSupervisor Elections and Appointments

The Conservation commission shall keep a The Conservation commission shall keep a record of supervisors elected in each district, record of supervisors elected in each district, appointments to fill vacancies, and the expiration appointments to fill vacancies, and the expiration date of each supervisor's term of office. date of each supervisor's term of office.

The commission shall provide nominating The commission shall provide nominating petitions for district supervisors to district offices petitions for district supervisors to district offices as needed by April 1 of the general election year as needed by April 1 of the general election year (usually sent in January).(usually sent in January).

The commission shall provide newly elected The commission shall provide newly elected supervisors with an oath of office form. supervisors with an oath of office form.


SDCL 38‑8‑39 requires districts to give legal notice, SDCL 38‑8‑39 requires districts to give legal notice, before any general election, of all positions for before any general election, of all positions for which nominations may be filed. The last publication which nominations may be filed. The last publication of the notice must be accomplished between June of the notice must be accomplished between June 10 and June 15 of the election year. Completed 10 and June 15 of the election year. Completed petitions must be filed by July 1. petitions must be filed by July 1.

Any person who has duly filed a valid nominating Any person who has duly filed a valid nominating petition (signed by twenty-five or more voters in the petition (signed by twenty-five or more voters in the district) for a supervisor's position, and is district) for a supervisor's position, and is unopposed by other candidates, is automatically unopposed by other candidates, is automatically elected and certified to fill the office. elected and certified to fill the office.


Supervisors serve a four‑year term, beginning on Supervisors serve a four‑year term, beginning on January 1st following the election. However, when January 1st following the election. However, when a supervisor's position becomes vacant during the a supervisor's position becomes vacant during the first two years of a four‑year term, the board of first two years of a four‑year term, the board of supervisors can appoint someone to fill the position supervisors can appoint someone to fill the position until the next general election, at which time a until the next general election, at which time a supervisor is elected for a two‑year term. supervisor is elected for a two‑year term.

If a vacancy occurs during the last two years of a If a vacancy occurs during the last two years of a four‑year term, an appointment can be made to fill four‑year term, an appointment can be made to fill the position until the next general election, at which the position until the next general election, at which time a supervisor is elected for a full four‑year term. time a supervisor is elected for a full four‑year term. The purpose is to maintain the established rotation The purpose is to maintain the established rotation of supervisor elections.of supervisor elections.


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

Supervisor Elections and Appointments Supervisor Elections and Appointments

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

Legal ResponsibilitiesLegal Responsibilities At the first meeting in January of each year the At the first meeting in January of each year the

supervisors of a conservation district shall supervisors of a conservation district shall designate a chairman, vice-chairman, a designate a chairman, vice-chairman, a secretary and a treasurer, or a secretary-secretary and a treasurer, or a secretary-treasurer. The treasurer, or secretary-treasurer, if treasurer. The treasurer, or secretary-treasurer, if combined, need not be a member of the board combined, need not be a member of the board of supervisors. of supervisors.

A majority of the supervisors (3 of 5) shall A majority of the supervisors (3 of 5) shall constitute a quorum and the concurrence of a constitute a quorum and the concurrence of a majority in any matter within their duties shall be majority in any matter within their duties shall be required for its determination. (In other words, if required for its determination. (In other words, if only three supervisors are present a motion only three supervisors are present a motion must pass unanimously) must pass unanimously)

Legal ResponsibilitiesLegal Responsibilities All meetings and hearings of the board of All meetings and hearings of the board of

supervisors shall be open to the public and supervisors shall be open to the public and publicized publicized

Supervisors may hire employees. Supervisors may hire employees. Supervisors may call upon the state attorney Supervisors may call upon the state attorney

general and local state's attorney for legal general and local state's attorney for legal services. services.

Supervisors may delegate to their officers, to one Supervisors may delegate to their officers, to one or more supervisors, or to one or more employees or more supervisors, or to one or more employees such powers and duties as they may deem proper such powers and duties as they may deem proper and consistent with this chapter. and consistent with this chapter.

Legal ResponsibilitiesLegal Responsibilities Supervisors:Supervisors: may provide surety bonds for all employees and may provide surety bonds for all employees and

officers entrusted with funds or property; officers entrusted with funds or property; shall keep a full and accurate record of all shall keep a full and accurate record of all

proceedings, resolutions and orders issued or proceedings, resolutions and orders issued or adopted; and, adopted; and,

within sixty days of the close of the district's within sixty days of the close of the district's fiscal year, shall produce a financial report and fiscal year, shall produce a financial report and report of principal activities. The reports shall be report of principal activities. The reports shall be kept at the both the Division of Resource kept at the both the Division of Resource Conservation and Forestry and the district. Conservation and Forestry and the district.


Districts must hold public meetings and may Districts must hold public meetings and may solicit legal assistance from the attorney solicit legal assistance from the attorney general’s office to carry out activities of the general’s office to carry out activities of the district. district.

Districts work directly with the state Department Districts work directly with the state Department of Agriculture, Division of Resource of Agriculture, Division of Resource Conservation and Forestry, the Conservation Conservation and Forestry, the Conservation Commission and resource users to carry out the Commission and resource users to carry out the duties of the district. duties of the district.


Districts are responsible to:Districts are responsible to: Implement the provisions of the Soil Erosion and Implement the provisions of the Soil Erosion and

Sediment Damage Control Act (SDCL 38‑8A), Sediment Damage Control Act (SDCL 38‑8A), including the blowing dust provisions.including the blowing dust provisions.

Seek assistance from the Division of Conservation Seek assistance from the Division of Conservation and State's Attorney as needed. and State's Attorney as needed.

Work with counties to implement SDCL 31‑12‑44 & Work with counties to implement SDCL 31‑12‑44 & 45, and with townships to implement SDCL‑31‑13 45, and with townships to implement SDCL‑31‑13 ‑57 & 58 in addressing erosion damages to local ‑57 & 58 in addressing erosion damages to local roads.roads.

Functions & PowersFunctions & Powers

Each conservation district is a governmental Each conservation district is a governmental subdivision of the state as in South Dakota subdivision of the state as in South Dakota Codified Law (SDCL) Chapter 38-8-15Codified Law (SDCL) Chapter 38-8-15 and has and has and shall exercise the following functions, powers, and shall exercise the following functions, powers, and duties to:and duties to:

Employ, subject to available funds, clerical and staff Employ, subject to available funds, clerical and staff personnel, including legal staff;personnel, including legal staff;

Conduct surveys, investigations, and research relating Conduct surveys, investigations, and research relating to soil erosion, floodwater, non-point water pollution, to soil erosion, floodwater, non-point water pollution, flood control, water pollution, sediment damage, and flood control, water pollution, sediment damage, and watershed development;watershed development;

Functions & PowersFunctions & Powers (cont’d)(cont’d)

Devise and implement measures for the prevention of Devise and implement measures for the prevention of soil erosion, floodwater and sediment damages, non-soil erosion, floodwater and sediment damages, non-point water pollution, and for the conservation, point water pollution, and for the conservation, development, utilization and disposal of water on state development, utilization and disposal of water on state or private lands with the consent of the land occupier.or private lands with the consent of the land occupier.

Construct, improve, operate, and maintain any Construct, improve, operate, and maintain any structures considered necessary or convenient for the structures considered necessary or convenient for the performance of any operation authorized by this part, performance of any operation authorized by this part, and acquire property, both real and personal, through and acquire property, both real and personal, through purchase, or otherwise, and maintain, improve, and purchase, or otherwise, and maintain, improve, and administer such property consistent with the purposes administer such property consistent with the purposes of this part;of this part;

Functions & Powers Functions & Powers (cont’d)(cont’d)

Enter into contracts or agreements in the name of Enter into contracts or agreements in the name of the district, and sue and be sued;the district, and sue and be sued;

Receive funds from any federal or state agency or Receive funds from any federal or state agency or from any county, city, or other political subdivision from any county, city, or other political subdivision within the state or from any private source; within the state or from any private source;

Annually submit to the commission on or before Annually submit to the commission on or before January 30, of each year, a copy of the minutes of January 30, of each year, a copy of the minutes of each district meeting, a copy of its annual work plan, each district meeting, a copy of its annual work plan, and an accounting of the district's financial affairs.and an accounting of the district's financial affairs.

Do all other things necessary or convenient for the Do all other things necessary or convenient for the

efficient and effective administration of the district.efficient and effective administration of the district.

Soil Erosion and Sediment Damage Soil Erosion and Sediment Damage ControlControl

Complaints about damaging soil erosion fall Complaints about damaging soil erosion fall under SDCL 38-8A. While the law is not a under SDCL 38-8A. While the law is not a strong regulatory act, it has helped districts strong regulatory act, it has helped districts solve many erosion problems in a constructive solve many erosion problems in a constructive way. way.

The law provides:The law provides:1) a way for people to seek some action when 1) a way for people to seek some action when they are adversely affected by erosion, without they are adversely affected by erosion, without the necessity of going to court. An affected party the necessity of going to court. An affected party retains the right to sue under the tort claims law, retains the right to sue under the tort claims law, Chapter 21, if a satisfactory solution cannot be Chapter 21, if a satisfactory solution cannot be found under Chapter 38-8A. found under Chapter 38-8A.


Conservation districts have no legal Conservation districts have no legal authority to establish ordinances, only authority to establish ordinances, only county and local governments have that.county and local governments have that.

However, conservation districts, by state However, conservation districts, by state law, must establish soil erosion law, must establish soil erosion standardsstandards. . By law, the county must enforce these By law, the county must enforce these standards when they issue permits within standards when they issue permits within the county; thereby, creating a “symbiotic” the county; thereby, creating a “symbiotic” relationship between the county and the relationship between the county and the conservation district. conservation district.


Additionally the law provides: Additionally the law provides: 2) local control and local solutions for 2) local control and local solutions for

resource problems. State agencies cannot resource problems. State agencies cannot enforce actions on a complaint, unless the enforce actions on a complaint, unless the "land-disturbing" activities are carried out "land-disturbing" activities are carried out under contract with an agency of the state.under contract with an agency of the state.

3) a conservation district can seek injunctive 3) a conservation district can seek injunctive relief in a circuit court to enforce the relief in a circuit court to enforce the provisions of the law.provisions of the law.


The district has two months from receipt of a The district has two months from receipt of a complaint to:complaint to: determine if the district erosion standards are being determine if the district erosion standards are being

violated,violated, determine if the person signing the complaint is determine if the person signing the complaint is

adversely affected, and adversely affected, and advise the petitioner of the boards’ disposition of his advise the petitioner of the boards’ disposition of his

complaint.complaint. The land disturber has up to six months to The land disturber has up to six months to

develop an erosion and sediment control plan. develop an erosion and sediment control plan.


Upon approval by the district board, the Upon approval by the district board, the disturber then has up to six months to disturber then has up to six months to implement the plan. The district has authority implement the plan. The district has authority to grant a variance for additional time if six to grant a variance for additional time if six months is not long enough for a complex months is not long enough for a complex implementation project. implementation project.

Emergency situations can force land Emergency situations can force land treatments as quickly as three days if ordered treatments as quickly as three days if ordered by the county commissioners.by the county commissioners.

Support MaterialSupport Material

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

SummarySummary

Conservation districts are legal subdivisions Conservation districts are legal subdivisions of state government with additional powers of state government with additional powers including:including: The right to sue and be suedThe right to sue and be sued Execute contractsExecute contracts Make rules and set regulationsMake rules and set regulations Set up officesSet up offices Operate or sell propertyOperate or sell property Accept fundsAccept funds Manage federal grant programsManage federal grant programs Hold public meetingsHold public meetings

SummarySummary

District law was passed in South Dakota in 1937District law was passed in South Dakota in 1937 1982 that all areas of the state were covered by 1982 that all areas of the state were covered by

conservation districtsconservation districts Districts are required to keep records, hold Districts are required to keep records, hold

public meetingspublic meetings Supervisor may be removed for neglect of duty Supervisor may be removed for neglect of duty

or malfeasanceor malfeasance

SummarySummary

Three supervisors are rural landowners or Three supervisors are rural landowners or occupiers;occupiers;

One supervisor is an urban resident One supervisor is an urban resident One supervisor is a taxpayer of real propertyOne supervisor is a taxpayer of real property Districts must give legal notice, before any Districts must give legal notice, before any

general election, of all positions for which general election, of all positions for which nominations may be filednominations may be filed

Supervisors serve a four‑year term (two years if Supervisors serve a four‑year term (two years if filling a vacancy)filling a vacancy)

SummarySummary

Appointed supervisorAppointed supervisor must be at least must be at least reappointed by the board (if not going reappointed by the board (if not going through election process).through election process).

Elected supervisorElected supervisor (unless forfeited by (unless forfeited by death, resignation or removal) holds office death, resignation or removal) holds office until a successor is electeduntil a successor is elected

SummarySummary

Each conservation district has the power and Each conservation district has the power and duties to:duties to:

Employ staff subject to available funds;Employ staff subject to available funds; Investigate soil erosion, floodwater, water pollution, Investigate soil erosion, floodwater, water pollution,

sediment damage, and watershed development;sediment damage, and watershed development; Implement measures for the prevention of soil Implement measures for the prevention of soil

erosion,erosion, Construct structures and acquire property, both real Construct structures and acquire property, both real

and personal necessary or convenient to fulfill their and personal necessary or convenient to fulfill their responsibilitiesresponsibilities

Review QuestionsReview Questions What actions in history acted to create the What actions in history acted to create the

conservation district system?conservation district system? What legislation directs the activities of a What legislation directs the activities of a

conservation district?conservation district? What is the role of the conservation district What is the role of the conservation district

supervisor to assure compliance with supervisor to assure compliance with conservation laws?conservation laws?

What are the key legal responsibilities of a What are the key legal responsibilities of a conservation district supervisor?conservation district supervisor?

Documents

South Dakota Conservation Districts Continuing Education Module 5: Legal Responsibilities of a Supervisor