October 14, 1982

Mr. Robert A. Sambroak, Jr. 
Jackson County States Attorney 
Kadoka, South Dakota 57543

Official Opinion No. 82-50

RE:  Whether old Washabaugh County is within the West River Conservancy Subdistrict

Dear Mr. Sambroak:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

On November 5, 1968, the voters of what was Washabaugh County, South Dakota, and is now a part of Jackson County, South Dakota, voted not to become a member of the West River Conservancy Subdistrict.  Eight years later, on November 2, 1976, the voters of both Jackson and Washabaugh Counties voted on the question of whether or not the organized county of Jackson and the unorganized county of Washabaugh should be consolidated into one organized county.  That election resulted in the merger of Jackson and Washabaugh Counties into one county known as Jackson.  Prior to the merger, old Jackson County was with the West River Conservancy Subdistrict. Following the completion of the merger after the November, 1976, election, no additional elections were held on the question of whether old Washabaugh County should be or was included with the West River Conservancy Subdistrict.

Based on the above facts, you have asked the following question:

QUESTION: 

Is the territory that formerly comprised old Washabaugh County and is now officially part of Jackson County, now included within the West River Conservancy Subdistrict by virtue of the merger of the two counties which took place following the election of November, 1976?

The process of forming a conservancy subdistrict is initiated when a petition describing an area to be included in a subdistrict is filed with the South Dakota Conservancy District.  The District Board then approves the petition for the establishment of a proposed subdistrict and refers the question of the formation of the subdistrict to the electors within the area described in the petition.  SDCL 46-18-4.  There is no requirement that the subdistrict boundaries follow county boundary lines.  When the electors of Washabaugh County voted not to include that county in the West River Conservancy Subdistrict, the finalized boundaries of the subdistrict excluded Washabaugh County.

The election which combined Jackson County and Washabaugh County did not operate to change the boundaries of the subdistrict since areas cannot become a part of the subdistrict unless the electors in the area actually voted to be included.  SDCL 46-18-8.

Absent an adjustment of boundaries pursuant to SDCL 46-18-10 or the inclusion of additional area in a subdistrict pursuant to SDCL 46-18-11, an area which voted not to become part of the subdistrict at the time the subdistrict was formed remains out of the subdistrict.  Consequently, the answer to your question is NO, the territory that formerly comprised old Washabaugh County is not part of the West River Conservancy Subdistrict.

Respectfully submitted,

Mark V. Meierhenry
Attorney General