December 5, 1989

The Honorable Walter D. Miller
Lt. Governor, State of South Dakota
Executive Office
State Capitol Building
Pierre, SD 57501

OFFICIAL OPINION NO. 89-33

Grazing District Opinion Request

Dear Lt. Governor Miller:

This letter is in response to your June 7, 1989, letter. In that letter you state that the Coordinated Resource Management Committee met on May 15, 1989, at the request of Mr. Ingebert Fauske. As a result of that meeting you are requesting an opinion from me regarding the following questions:

QUESTIONS:

1. To what extent do the bylaws of the Grazing Board, rules of management, and grazing agreement, give the right of the Board to control grazing on private lands?

2. Does the Grazing Board have the same obligation as the landowner with respect to boundary fencing?

With your letter you enclosed copies of the May 7, 1986, Grazing Agreement between the U.S. Forest Service and the White River Cooperative Grazing District (without Exhibits); the May 7, 1986, Rules of Management for Land Administered by the White River Cooperative Grazing District (with Amendment dated January 12, 1988); and the April 7, 1975, By-Laws of White River Cooperative Grazing District (with the October 20, 1976, and October 17, 1979, Amendments). In providing you with the opinion set out in this letter, I am assuming that the documents which you have sent to me are complete, current, validly promulgated and are consistent with all materials referenced therein. In addition, assuming that your references to the Board in your questions are intended as references to the District since the Board is merely the mechanism through which the District's authority is exercised. The District is the entity which is authorized to be established for the purposes contained in SDCL Chapter 40-23.

IN RE QUESTION NO. 1:

Section E.5. of the Rules of Management for Land Administered by the White River Cooperative Grazing District is entitled "Private Land Grazing Permit." That section provides in relevant part:

Members owning or controlling grazing lands may waive their private land to the District making these lands available to the District for allocation. Members waiving these private lands to the District may receive priority consideration on other District administered lands that can be used advantageously by them.  . . .Lands waived will be subject to use as described by the rules of management, except that the livestock ownership requirements may be waived by the board upon request from the member controlling or owning the land in question.

The membership fee is limited to five dollars ($5.00) by both the bylaws (Art. III 2) and statute (SDCL 40-23-3). In addition, there is nothing in the statutes or documents provided to me that requires members or prospective members to waive their private lands to the District as a condition of membership. Of course, if the member does not waive his private lands to the District, the District's benefits will be apportioned to him on a commensurate basis with other members who have not waived their private lands.

In effect, the District is authorized to have two classes of members who are treated differently. Those members who have waived private land to the District are entitled to more benefits than those who have not. Therefore, it is my opinion that a landowner may waive his right to control grazing on private lands in return for the benefits associated with such waiver. Such a waiver is voluntary, however, and the District cannot force the member to waive his private lands to the District. Unless the landowner waives his private lands to the District, the District may not control grazing on his private lands.

IN RE QUESTION NO. 2:

For the purpose of this question, I am assuming that the term "boundary fencing" used in your letter means the same as "partition fence." Section N.2. of the Rules of Management provides:

2. Repair and Replacement of Improvements.

The Grazing Agreement between the District and the Service under clause D-5 requires the District to repair, maintain, and replace improvements located on National Grassland covered by the Agreement except under specific circumstances. The District members will carry out their obligations in the following manner:

a. All improvements located on District administered or controlled lands within an individual unit of a member shall be maintained and/or replaced except as noted in Item C below by said member at his sole expense and in a manner acceptable to the Board of Directors and the Service. . . .

b. All improvements located on District administered lands within community pastures will be repaired jointly by the permittees or in a manner suitable to the Directors.

c. The District will replace improvements at conservation practice expense on Service lands that are inoperative due to normal depreciation or conditions beyond the control of the permittee. The District will construct new range improvements identified in approved Allotment Management Plans. Construction of range improvements will be guided by the provisions in Exhibit E of the Grazing Agreement. (Emphasis added.)

You will note that Section N.2. deals with improvements in general and not specifically with partition fences. Since fences are improvements whether or not they are partition fences, Section N.2. applies. SDCL 43-23-1 provides:

Unless adjoining landowners otherwise agree, every owner of land shall be liable for one-half of the expense of erecting and maintaining a partition fence between his own and adjoining lands. However, no owner of land is liable for such expense if neither keeps livestock on the affected tract of land and neither derives any other substantial benefit from the fence for a period of five years from the date of erection or repair of the fence.

SDCL 43-23-2 is also applicable. It provides:

Unless otherwise agreed upon, if adjoining landowners are liable for one-half of the expense of erecting and maintaining a partition fence pursuant to 43-23-1, each owner of adjoining lands shall build that half of the fence which shall be upon his right hand when he stands upon his own land and faces the line upon which the proposed fence is to be built.

Assuming that the exception in SDCL 43-23-1 does not apply, it is my opinion that SDCL 43-23-1 and 43-23-2 require that the landowner is responsible for erecting and maintaining the partition fence as set out therein unless the District or its members have agreed to undertake the obligation. By adopting Rule N.2. in the Rules of Management, it is my opinion that the District has agreed to accept the landowner's responsibility with respect to partition fences as set out in N.2.c.; the members have agreed to accept the landowner's responsibility with respect to partition fences as set out in N.2.a. and N.2.b.

Respectfully submitted,

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

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