If you want to pull a piece of land out of a South Dakota sanitary district, how many petition signatures do you need? Is it 20% of all voters in the district, or 20% of votes cast for the top trustee at the last election?

Plain-English summary

The Spring Creek Cow Creek Sanitary District in central South Dakota was formed in 2020. Two years in, a group of landowners filed a petition asking the district to release their property from its boundaries. The petition had 10 signatures. The Sully County Commission approved the exclusion resolution. The district's board of trustees then paused and asked a basic question: how many signatures does SDCL 34A-5-42 actually require?

The statute reads:

[N]ot less than twenty percent of the legal voters residing within the district, as shown by the vote for the member of the board of trustees receiving the highest vote at large at the last preceding annual election in the district.

That sentence pulls in two directions. The first half says 20% of legal voters in the district. The second half says "as shown by the vote for" the top trustee at the last election. If you take the first half at face value, a 5,000-resident district would need 1,000 signatures. If you take the second half at face value, the relevant number is the count of votes the top trustee received, not the count of voters who exist.

AG Mark Vargo read the qualifying phrase as the controlling number. The legislature did not say "20% of voters, defined by the last trustee election" without intending that defining phrase to do work. So the petition threshold is 20% of the top trustee's vote total, period. In Vargo's hypothetical, a new district where the leading candidate got 40 votes needs only 8 signatures on an exclusion petition.

The opinion also includes Question 2 (statute-of-limitations tolling under SDCL 34A-5-44), but the main answer focuses on the signature math.

What this means for you

If you are a sanitary district trustee or board attorney

The opinion holds that the SDCL 34A-5-42 signature threshold is "at least 20% of the votes cast for the member of the board of trustees who received the highest number of votes at the last annual election," not 20% of all resident voters and not 20% of total votes cast. In the opinion's hypothetical, a district whose leading trustee received 40 votes requires 8 signatures on an exclusion petition.

If you are a landowner trying to exclude property from a district

The opinion holds the denominator is the top trustee's vote total at the last annual election, so the required number of signatures is 20% of that figure. It describes the statutory sequence as the district board acting on the petition and resolution, with the county commission approving the resolution under SDCL 34A-5-43.

If you sit on a county commission with sanitary districts

The opinion notes that, under SDCL 34A-5-43, the county commission approves the exclusion resolution after the district board acts (as the Sully County Commission did here). The opinion's holding concerns how the district calculates the petition signature threshold under SDCL 34A-5-42; it does not assign the commission a role in recounting signatures.

If you are a SD municipal or rural-water attorney

The opinion rests on the canon that the Legislature "does not intend to insert surplusage into its enactments" (Steinberg): the qualifying phrase "as shown by the vote for the member of the board of trustees receiving the highest vote" must be given effect, so it controls the denominator. The opinion contrasts SDCL 2-1-5 and 12-5-1, where the Legislature did tie thresholds to total votes cast, as showing it knew how to write that when it wanted to.

If you are a resident affected by a district's boundaries

The opinion holds the exclusion-petition threshold is 20% of the votes the top trustee received at the last annual election, which in a low-turnout district is a smaller number than 20% of all resident voters. It does not address the tactics of organizing a petition.

Common questions

Q: Why didn't the AG read the statute to require 20% of all district voters?
A: The "as shown by the vote for" phrase modifies "legal voters residing within the district" and turns the trustee-election vote total into the denominator. South Dakota's Supreme Court does not read statutory phrases as surplusage (Steinberg, 2000 S.D. 36, ¶ 12). If the legislature wanted total voters, it would have written that, the way it did in SDCL 2-1-5 (initiative/referendum signature threshold uses "total number of votes cast for Governor at the last preceding gubernatorial election") and SDCL 12-5-1 (new political party formation).

Q: What happens if no annual election has been held yet?
A: The statute keys off the "last preceding annual election." If a district has never held one, the statutory denominator does not yet exist, and the petition mechanism may be on hold until the first election generates a vote total. The opinion does not address that edge case directly, but it implies the statute presupposes an election has occurred.

Q: Does this apply to other special districts in South Dakota?
A: No. SDCL 34A-5-42 is specific to sanitary districts. Other special-district types (drainage, irrigation, fire protection, hospital, conservation) have their own enabling statutes with their own petition thresholds. Each must be read on its own terms.

Q: Can a district set a higher signature threshold by board rule?
A: The opinion does not directly address that, but the statutory rule is generally a floor. A district imposing a higher threshold by board rule would face a preemption argument: SDCL 34A-5-42 sets the legal requirement; a board cannot demand more without statutory authority.

Q: What about Question 2 in the opinion, the statute-of-limitations tolling?
A: The opinion title flags SDCL 34A-5-44 tolling, but the published text addresses the signature-calculation question in detail. Parties relying on the tolling analysis should read the opinion's full text closely against the specific facts of any limitations issue.

Q: Does this opinion bind a court?
A: No. AG opinions in South Dakota are persuasive authority, not binding precedent. A court could read SDCL 34A-5-42 differently, although the AG's textual analysis is grounded in standard South Dakota statutory-construction canons.

Background and statutory framework

Sanitary districts in South Dakota are special-purpose local governments organized under SDCL Chapter 34A-5. They build and operate sewer and water systems, typically in rural or unincorporated areas where a municipality cannot provide the service and where multiple landowners benefit from a shared infrastructure. Districts have boards of trustees (three members under SDCL 34A-5-14.1 and -16), are funded by user fees and assessments on properties inside the boundary, and have powers similar to a small municipal utility.

Exclusion of property from a district happens in a structured sequence under SDCL 34A-5-42 through -44:

1. Landowners file a petition with the district's board.
2. The board sets the matter for public hearing.
3. The board acts on the proposed resolution.
4. The county commission approves the resolution under SDCL 34A-5-43.
5. SDCL 34A-5-44 provides a window for challenges and tolls a statute of limitations on later attacks.

The signature threshold under SDCL 34A-5-42 is the gating step. If the petition does not have enough signatures, the rest of the process does not start. So getting the math right matters.

The AG's reading aligns the threshold with the practical reality of small special-district elections: turnout is low, so a denominator equal to "total district voters" would make exclusion almost impossible in many districts. By keying the denominator to the top vote-getter at the last election, the legislature scaled the threshold to the level of actual political engagement with the district. That choice is consistent with how South Dakota generally calibrates local-government participation requirements.

Citations and references

Statutes:
- SDCL 34A-5-14.1 (trustees elected at large)
- SDCL 34A-5-16 (trustee terms)
- SDCL 34A-5-42 (signature threshold; the operative provision)
- SDCL 34A-5-43 (county commission approval)
- SDCL 34A-5-44 (tolling and limitations period)
- SDCL 2-1-5 (initiative or referendum signature base, by contrast)
- SDCL 12-5-1 (political-party formation signature base, by contrast)

Cases:
- Olson v. Butte County Commission, 2019 S.D. 13, 925 N.W.2d 463
- Goetz v. State, 2001 S.D. 138, 636 N.W.2d 675
- In re Wintersteen Revocable Trust Agreement, 2018 S.D. 12, 907 N.W.2d 785
- Steinberg v. South Dakota Dep't of Military and Veterans Affairs, 2000 S.D. 36, 607 N.W.2d 596 (legislature does not insert surplusage)
- Holborn v. Deuel County Board of Adjustment, 2021 S.D. 6, 955 N.W.2d 363 (no reading-in of unwritten language)
- Martinmass v. Engelmann, 2000 S.D. 85, 612 N.W.2d 600

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1758

Original opinion text

OFFICIAL OPINION No. 22-02

Re: Official Opinion Concerning Calculation of Petition Signatures under SDCL 34A-5-42, and Tolling of the Statute of Limitations under SDCL 34A-5-44

Dear Mr. Miller,

In your capacity as a counsel for the Spring Creek Cow Creek Sanitary District you have requested an official opinion from the Attorney General's Office on the following question:

QUESTION:

• How should SDCL 34A-5-42 be interpreted in calculating the number of petition signatures required to exclude territory from a sanitary district?

ANSWER:

• SDCL 34A-5-42 should be interpreted to require a number of signatures from resident voters of the sanitary district equal to at least 20% of the votes cast for the member of the board of trustees who received the highest number of votes at the last annual election.

FACTS:

The Spring Creek Cow Creek Sanitary District (District) was organized in 2020. The District serves residential users, recreational vehicle lots, and other commercial and recreational facilities in Hughes County and Sully County in central South Dakota.

In February, a petition for a resolution of exclusion of real property from the District was presented to the District's Board of Trustees. The Petition had been signed by 10 people. Following presentation of the Petition, the Board set the matter for public hearing. In March, the proposed Resolution was presented to the Sully County Commission who approved the Resolution as required by SDCL 34A-5-43. Subsequent to Sully County's approval, the District's Board of Trustees tabled the Resolution for further review of the issues surrounding potential exclusion of property from the District.

The question identified above arose in reviewing the issues raised by the Petition and Resolution.

IN RE QUESTION:

State law establishes the threshold number of signatures required on a petition to exclude territory from a sanitary district. SDCL 34A-5-42. The statute requires petition signatures from:

[N]ot less than twenty percent of the legal voters residing within the district, as shown by the vote for the member of the board of trustees receiving the highest vote at large at the last preceding annual election in the district.

SDCL 34A-5-42.

You have asked for my interpretation of SDCL 34A-5-42 in order to correctly calculate the number of petition signatures required by the statute.

When interpreting a statute to determine its meaning, "'the language expressed in the statute is the paramount consideration.'" Olson v. Butte County Commission, 2019 S.D. 13, ¶ 5, 925 N.W.2d 463, 464 (quoting Goetz v. State, 2001 S.D. 138, ¶ 5, 636 N.W.2d 675, 681). "When the language in a statute is clear, certain and unambiguous, there is no reason for construction." In re Wintersteen Revocable Trust Agreement, 2018 S.D. 12, ¶ 12, 907 N.W.2d 785, 789 (internal citations omitted). When the intent of the statutory language is unclear, "the intent of the legislature is derived from the plain, ordinary and popular meaning of the statutory language." Id.

Upon initial review of the statute, it is clear that at least 20% of the legal voters residing in a district must sign a petition to exclude territory from the district. SDCL 34A-5-42. However, the statute then limits or qualifies that calculation by stating "as shown by the vote for the member of the board of trustees receiving the highest vote at large at the last preceding annual election in the district." Id. This qualifying language gives pause when interpreting the statute.

Assume for illustrative purposes that a sanitary district was formed this year and held its first election. One hundred votes were cast at that election for three candidates: Candidate A received 40 votes, Candidate B received 35 votes, and Candidate C received 25 votes. In this hypothetical district, a petition to exclude territory from the district is filed in early 2023, before the district's next annual election. Does that petition need signatures in an amount equal to 20% of the total resident voters in the district? Does the petition need 20 signatures, equal to 20% of the total votes cast in the last election where the member of the board of trustees receiving the highest vote at large was elected? Or, does the petition need 8 signatures, equal to 20% of the vote received by Candidate A in the last annual election where Candidate A was the trustee receiving the highest number of votes?

It is my opinion that SDCL 34A-5-42 requires a petition to exclude territory from a sanitary district to be signed by legal voters that are residents of the district in a number equal to at least 20% of the votes cast for the member of the board of trustees receiving the highest number of votes at the last annual election. Referencing the hypothetical described above, I conclude the petition there would require at least 8 signatures, a number equal to 20% of the vote received by Candidate A in the last annual election in that district.

I cannot conclude that SDCL 34A-5-42 requires petition signatures equal to 20% of voters residing in the district. To do so is to give no effect to the qualifying language identified above. Steinberg v. South Dakota Dep't of Military and Veterans Affairs, 2000 S.D. 36, ¶ 12, 607 N.W.2d 596, 601 (citation omitted)("'[t]he Legislature does not intend to insert surplusage into its enactments'").

When interpreting a statute, I am bound by the terms used in the statute and not what I think the Legislature could have said or should have said. Holborn v. Deuel County Board of Adjustment, 2021 S.D. 6, ¶ 35, 955 N.W.2d 363, 378 (citing Martinmass v. Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d. 600, 611). The plain language of the statute requires use of "the vote for" the trustee "receiving the highest vote ... at the last preceding election" in determining the petition signature requirement. SDCL 34A-5-42. To reach the conclusion that the statute requires petition signatures based on 20% of the total vote cast in the last trustee election would be to read into the statute language that does not exist. If the Legislature wanted the total vote cast to control the petition signature requirement it could have drafted SDCL 34A-5-2 to require as much. The Legislature did not, and I cannot now add that language through my interpretation. Holborn, 2021 S.D. 6, ¶ 35; and Olson, 2019 S.D. 13, ¶ 10.

CONCLUSION

I conclude [that SDCL 34A-5-42 should be interpreted to require a number of signatures from resident voters of the sanitary district equal to at least 20% of the votes cast for the member of the board of trustees who received the highest number of votes at the last annual election].

Sincerely,

Mark A. Vargo

ATTORNEY GENERAL

MAV/SRB/dd